April 2006
The Board’s Work
by Lindsay Thompson
Seattle, March 3, 2006
Gathering at the WSBA office, the Board of Governors heard a lengthy and detailed presentation from Practice of Law Board Chair Steve Crossland and members Stephanie Delaney, Rita Bender, and Judge Paul Bastine on the POLB’s proposal to create a licensing and regulatory scheme for nonlawyer “legal technicians.”
While passionately presented, the idea fell foul of the Dr. Fell Syndrome: The BOG liked what POLB stood for, but not how it stood.
Crossland’s PowerPoint reiterated POLB’s past arguments for legal techs as the answer to the large unmet civil legal services needs of Washington’s poor. He recounted the hearings held and presentations made. “Only lawyers can solve the problem,” he declared.
Judge Bastine reminded the BOG that POLB is a body of the state Supreme Court, separate from WSBA, the better to avoid restraint of trade accusations. To justify POLB’s plan for creating a new regulatory system for people to practice in limited areas of law, he cited a 2005 Federal Trade Commission letter to the Kansas State Bar. It maintained that nonlawyers should be able to provide legal information and advice absent clear evidence of harm to the public. Examples the FTC gave included real-estate agents; tax preparers; tenant and consumer associations; investment bankers and business planners; healthcare facilities (for powers of attorney and directives to physicians); self-help book publishers; websites; and computer programs. He went through how the state Supreme Court has created some arenas in which nonlawyers can already practice in limited areas of law in Washington.
Stephanie Delaney then described POLB’s intended regulatory scheme: completion of an approved course of study; passage of an exam covering general and specialized practice area legal knowledge; payment of application and licensing fees; a period of practice under a lawyer’s supervision; some required pro bono work; a physical office in-state; no puppy-milling work to unlicensed minions; written contracts with clients; meeting lawyers’ ethics and IOLTA requirements; and being subject to a discipline program. All in all, she concluded, legal techs will be even more regulated than lawyers, and at a cost to WSBA, over the five-year startup period, of less than one half of one percent of WSBA’s budget. After that the program will be self-supporting, she told the BOG, and the money repaid.
Rita Bender explained to the BOG that there’ll be a seven-member Nonlawyer Commission — a POLB subaltern — to create still lesser groups to study what areas of law should be open to legal techs. She told everyone POLB believes there has to be a regulatory framework in place before anyone decides on any areas of law to open up.
Judge Bastine argued the POLB Plan would deal effectively with unauthorized legal practice, improve the quality of legal services, and provide a solution to the issue of unmet legal needs. Crossland called the plan “a low-cost, low-risk, high-benefit plan.”
Governor Doug Lawrence agreed. He said General Rule 12, which defines the purposes of the WSBA, calls on us to promote a civil legal system open to all. While he found his constituents were “95 to 1” against the idea, Lawrence thought POLB’s plan a “. . . good, important step. How can we take work away from lawyers,” he added, quoting a frequently voiced objection, “when we aren’t doing it now?”
Governor/Treasurer Mark Johnson disagreed. In the five-year rollout period, he said, WSBA would be hit for recurring and non-recurring costs that could run as high as $700,000. “There’s no evidence enough people will sign up for this to pay for itself in five years.”
Johnson dismissed the FTC letter as “Worthless. The FTC doesn’t regulate the legal profession in Washington.”
Warming to the theme, Johnson asked why people would want to go through a burdensome certification program, and open an office, to serve people with no money to pay for the service. “And what about malpractice insurance?” he added.
Governor Kristin Olson reported that her constituents were all against the plan. She didn’t believe it would meet the unmet legal needs goal, and wondered why the WSBA imposed extra pre-admission requirements on new lawyers within recent memory only to be asked now to endorse creating a class of less-well-trained technicians. Responding, Chair Crossland contended legal techs would be more qualified out of the box to serve the public than newly admitted attorneys. He added that in the best case, the program won’t be up and running till 2009 or 2010, so there’ll be no out-of-pocket any time soon.
Governor Marcine Anderson expressed admiration for the POLB’s presentation and commitment, but was concerned they want to just create a new level of services the poor still cannot afford. Rita Bender replied, “It might not work, but what we have now isn’t working, either.”
Governor Mike Pontarolo liked the POLB concept, but questioned how market forces could address working for people with no disposable income to speak of; doubted it would curb UPL; and worried the plan has too many unknowns at the front end.
Governor Eron Berg agreed with Pontarolo’s points, then asked why POLB’s plan couldn’t be tested as a pilot program. He wondered, too, why the Young Lawyers Division GAAP program, in which lawyers agree to work for low, capped fees, couldn’t be rolled out statewide more easily, since it is already working.
Rita Bender contended you couldn’t do a pilot program until you have the standards and regulations in place. Once we do that, she said, the first area of law identified for a certification program would become a de facto pilot program.
Governor Katie O’Sullivan questioned POLB’s apparent reliance on the FTC letter because of the examples it listed of areas where nonlawyers could give legal information and advice, only one dealt even peripherally with low-income legal needs.
Governor Stan Bastian favored doing something, but didn’t think the POLB plan was it. He moved that the BOG take no position on the matter when/if the POLB sends it to the Supreme Court.
Governor Jim Baker agreed with Governor Lawrence’s comments, but was concerned that legal techs would compete most directly with debt-saddled new lawyers. Governor Salvador Mungia preferred a motion to oppose the plan. He was still waiting, he said, “to hear that this will meet the need.”
President Brooke Taylor opened the discussion to liaisons. WYLD President Noah Davis told the BOG young lawyers aren’t so much motivated by the practice impact legal techs could have as by concerns the plan won’t address the unmet need or UPL. He said YLD’s trustees oppose the plan, 13-1.
Gail Nunn, speaking for the WSBA Family Law Section, dittoed Davis. Her executive committee opposed the plan, 16-2.
Defense Trial Lawyers rep Jim Macpherson worried that creating this new level of legal technician might lead to new efforts to de-fund existing legal services programs on the grounds there was now a market-based alternative. The Litigation Section opposed the plan, too.
Diana Moller, representing the Washington chapter of American Immigration Lawyers, expressed frustration that her group’s concerns have been ignored by POLB. She told the BOG nonlawyers in the immigration field often charge more than lawyers do, in effect, preying on especially vulnerable people in a field where one error could result in a client’s deportation. She failed POLB for “a naïve sense of altruism.”
After some further comment in the same vein, Governor Bastian withdrew his no-comment motion and Governor Mungia put his up to oppose the plan as proposed and drafted. The motion to oppose the plan passed, 12-2. Governor Berg moved to “keep the door open” to more discussion with the POLB; Mungia called the motion “a non-motion,” since the two bodies could do that without formal action. “It sends a message,” Governor Lawrence commented. Berg’s motion passed, 12-1-2.
The rest of the day was more routine business. Legislative Director Gail Stone updated the BOG on bills WSBA had in the Legislature and said overall this year’s legislative campaign has gone well. But with a week left in the session, anything could happen, and she was immediately back to Olympia to deal with a bill addressing judicial campaign finance and elections.
King County Bar Veep John Ruhl and Governor Lawrence rolled out a plan for a WSBA task force to dust off the idea of merit selection of judges, an oft-studied issue of the past 20 years. They asked for a 10-member body to include lawyers, judges, lay members, and minority bar representatives.
Judge Eileen Kato, representing the District and Municipal Court Judges Association, expressed concern that such a study might be at odds with the position of the Board of Judicial Administration, which includes members of all levels of courts in Washington and prefers elections at all levels. She told the BOG campaign finance excesses aren’t an issue below the appellate courts. “We just pay for campaigns with our home equity loans,” she said. After some more discussion, the Board voted 13-1 to authorize the study. Lawrence intends to get the group cracking, and have an initial report by July.
WSBA President-elect Ellen Cone-dera Dial chairs the committee that is planning WSBA’s planned December move to new digs in Seattle. She updated the BOG on how things are progressing, including the subject of a telephone BOG meeting in January: space needs. As work and planning has gotten more concrete, it has developed that more space will be needed, so in January the BOG authorized the President and the committee to see what they could negotiate.
The Board nominated Josephine Townsend and Joseph Delay for Supreme Court appointments to the Commission on Judicial Conduct. They nominated Bruce Reeves and Wayne Blair to the Access to Justice Board, but got stuck on making two other nominations because the Board made three recommendations for the two places and then listed a number of other candidates who didn’t make the cut without explaining why. So they will get some additional information provided and take the remaining nominations up in April.
The BOG also received a proposal to create a Juvenile Law Section in the WSBA. Under the Bylaws, that’s an initial step. Publication of notice for six months, development of bylaws, a budget, and gathering at least 50 WSBA members willing to join will follow. Completing that process was the new Sexual Orientation and Gender Identification Legal Issues Section, which completed those steps. They also approved a change to the term of office of CLE Committee members to make it easier for them to serve effectively on a body with a long learning curve.
Judy Berrett — my boss — gave a presentation on the work of the Member and Community Relations Department, which she heads. Big staff, it turns out, doing a remarkable variety of things.
Judges Catherine Shaffer and Anne Ellington gave an interesting and provocative presentation on a report they’ve been involved in developing on improving access to the judicial system for persons with disabilities. It’s a strikingly thorough piece of work designed to help courts in Washington deal with incredibly complex laws in the area. They want to get it published and asked for WSBA’s endorsement. See p. 18 for a report on this issue. The BOG will entertain ideas for publication.
So that’s how it went — a lot accomplished in a one-day meeting. Next meeting is April 21-22 in Walla Walla.
