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December 2007Most of the Board’s Workby Edward P. Sager September 20–21, Seattle It was told to me that the final Board of Governors meeting prior to the end of the fiscal year is the most interesting meeting of the year; consequently, those of you who drifted over to this column will find more information to digest than normal. Trust Account Responsibilities and Retainers Task Force Report (TARRTF) Although the presentation of the report was well-orchestrated and expertly given, attempting to harmonize and synthesize the elimination of old terms and the integration of new terms seemed difficult to most in attendance. Fortunately, providing attorneys training and education is a major part of the report. Formal Ethics Op. No. 186, “The Proper Handling of Advance Fee Deposits and Retainers,” was withdrawn by the BOG in 2005 following the State Supreme Court’s decision in In re DeRuiz, 152 Wn.2d 558 (2004). This withdrawal created a vacuum with respect to the handling of advance fee payments and TARRTF was formed to fill that vacuum. No longer can attorneys use “nonrefundable,” “earned upon receipt,” or “minimum” in fee agreements without running afoul of the RPCs. Conclusions reached during discussion include the following: • This proposed RPC does not overrule fee agreements that include: "funds will be deposited into a trust account and then taken out as earned." However, attorneys must be trained to use the term "advanced fee" instead of "retainer." Committee on Public Defense (CPD) The goal of the CPD is to study and craft public defense standards to ensure that public defense is up to constitutional requirements and allows for effective assistance of counsel. These standards provide guidance to attorneys and benchmarks for locales and organizations engaged in public defense work. It was stated that few non-caseload standards needed to be changed because most standards “stood the test of time,” but the four standards which needed modification, clarification, or updating involved compensation, administrative costs, support services, and qualifications of attorneys. A motion to approve the non-caseload standards was introduced and unanimously passed. Caseload Standards A complex examination of psychological factors, the reality of current caseloads, and desirable goals were sorted out during this agenda item. The contenders: 300 maximum misdemeanor caseload, with the ability to adjust upwards to 400 depending upon certain circumstances versus 400 maximum misdemeanor caseload with the goal to reduce that amount to 300. The full CPD, in a close vote, decided to not approve the CPD Standards Subcommittee’s 13–12 decision in favor of the 400 maximum with 300 as a goal, instead approving a 300 maximum, with the opportunity to adjust upwards to 400. A concern was voiced regarding the loss of state funding if counties cannot comply with the 300 standard. President Dial and the CPD clarified that funding is given to achieve the standards or to make progress towards achieving the standards. Several public attendees spoke passionately about why the 300 caseload was better. Arguments made in favor of the 300-case standard included that misdemeanor cases are more complex than they were when the standards were set in 1990, and that setting the standard at 300 would send a message to the counties that we take funding public defense seriously and that it is as important as courts, judges, and prosecution. In favor of the 400-caseload limit, one governor commented that we are discussing effective assistance of counsel, not necessarily great counsel. Also, 93 percent of public defense attorneys reported satisfaction with 400 cases. A motion was introduced to accept without change the recommendations of the CPD other than the misdemeanor caseload, and to change the misdemeanor caseload to 400 with the goal of 300. This motion failed 8–5. A follow-up motion was introduced to accept without change the CPD caseload standards. The vote was unanimous in favor of the motion. The BOG then recognized the CPD co-chairs for their thoughtful and thorough work. Bill Hyslop and Jon Ostlund were presented with framed posters of artwork by Jacob Lawrence representing the 50-year anniversary of the NAACP. WYLD President John Brangwin gave the WYLD report and spoke with passion and humility about the need to fund a statewide GAAP, the Greater Access and Assistance Program. President Brangwin stated, without reservation, that GAAP is the least expensive and best alternative to the “ill-conceived Practice of Law Board’s legal technician proposal.” At the end of the WYLD report, President Brangwin introduced the new WYLD president, Mark O’Halloran. President Dial conducted the swearing-in ceremony. It was clear that this successful day of decisions was made easier by the conscientious and thorough work by the various task forces, committees, and boards. Bar News Editor Selection The BOG meeting reconvened Friday at 8:30 a.m. with the Bar News editor candidate interviews and discussion first on the agenda. The final three candidates (Paul Fjelstad, Michael Heatherly, and William Trippett) were given five minutes to introduce themselves and then the floor was opened to the BOG to ask questions of each candidate for five to 10 minutes. In May 2007, the Editorial Advisory Board (EAB) was charged with the duty to present to the BOG three candidates for a new Bar News editor. The EAB quickly formed an editor search subcommittee, advertised the position, collected applications, and interviewed candidates. Several of the questions asked of the candidates dealt with the role of the Bar News in promoting the BOG views and policies, as well as the expressed desire of the BOG to eliminate the tension which has sometimes existed between the BOG and the Bar News. The candidates generally agreed that a cordial and cooperative relationship with the BOG was desirable. After the candidate Q&A, a lively discussion began with EAB Co-Chair Anh Nguyen and EAB member Shelley Szambelan describing the weighted-point system used to select/review candidates. A motion to select Mr. Heatherly as the next Bar News editor was introduced and passed unanimously. The BOG then recognized the efforts of Donna Sato (executive assistant to the executive director) and President Dial. Both were given gifts and thanked for their service. Loan Payment Assistance Program Dwight Williams, chair of the Loan Repayment Assistance Program, presented an impassioned and frank oration, stating that now is the time to decide whether the WSBA and attorneys will financially support the program, and if not, then to please eliminate the program, rather than allow it to wither on the vine. Educational loan giant AES previously provided funding, but that may not continue. There has been no success with persuading large law firms to contribute to this program and very little success with the various committees, sections, and boards. In order for this program to continue, it needs members of large law firms to champion contribution efforts. The general consensus of the BOG is that this program needs to continue. The BOG recognized Dwight Williams’s tireless efforts with a round of applause and a gift. FY 2008 Budget Treasurer Eron Berg presented the FY 2008 budget. Highlights include: • Reserves exist for future specific BOG programs. A lively discussion then occurred over the statewide GAAP which was not included in the FY 2008 budget. Governor Karademos moved to amend the budget to find funds for a statewide GAAP. The main argument against currently funding a statewide GAAP is that the current GAAP proposal does not address all the concerns associated with the WSBA administering such a program. WSBA General Counsel Bob Welden also stated that there might be liability concerns. The BOG wants to support GAAP; it just needs a more refined proposal. Governor Karademos withdrew his motion so the BOG could vote on whether to approve the budget as is and then propose and vote on amendments. A motion was introduced to approve the budget with the understanding that the budget will be balanced next year. The motion passed 12–1. Gonzaga University School of Law Dean Earl Martin and the Gonzaga Law School SBA president attended the BOG Meeting via telephone to discuss a Spokane Bar exam, estimated to cost $36,000 plus additional staffing. Dean Martin presented the issue as one of equity: Traveling from eastern Washington to take the Bar exam can affect performance, and combined travel costs each year for Gonzaga law students alone is greater than $100,000. According to Dean Martin, a $45 increase in Bar exam fees would cover the costs. Dean Martin also stated that Gonzaga and the entire Spokane County legal community will do everything they can to support a Bar exam in Spokane, including providing volunteers and working to find appropriate facilities. A few BOG members and WSBA General Bob Welden stated that there are many potential logistical and legal problems. A recess for lunch was called and Dean Martin was invited back for the afternoon session. Unfortunately, I had to leave and missed the afternoon discussion. However, by now, the minutes of the September 2007 BOG meeting will have been approved and the mysteries of the September 21, 2007, afternoon session revealed. Having never previously attended any BOG meetings, I was impressed with the amount of content and depth of discussion which crossed the Big Table during the one-and-a-half days I attended. As expected, more weighty issues were given higher priority and more time for discussion than less-controversial subjects. None of the governors held back their passion, disappointment, excitement, and enjoyment during the discussions and presentations. Thank you, Board of Governors, for showing me the important and vast amount of work you do. Thank you, Lindsay Thompson, for your past Bar News service. And finally, best wishes to Michael Heatherly as the new Bar News editor. More information on the Board of Governors meetings can be found at www.wsba.org/info/bog/default.htm, where links to the minutes are located in the right-hand column. Edward P. Sager was the co-chair for the 2006–2007 WSBA Editorial Advisory Board. He is a solo contract attorney in Kirkland emphasizing disability, appellate, and immigration work. Mr. Sager graduated from Brigham Young University with a B.S. in finance and received his J.D. in 1996 from Gonzaga University School of Law. He can be contacted at 425-823-1111 or www.edsager.com.
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