January 2006

The Board’s Work

by Lindsay Thompson

Vancouver, WA, October 28-29, 2005

A short meeting, this. The Board met in open session for three-and-a-half hours Friday, and an hour-and-a-half Saturday morning. I had to attend to the Annoying Day Job, and passed on the excursion.

On the routine matters front, the Board approved a variety of appointments, and proposed Bylaw changes for the Real Property, Probate and Trust Section.

The WSBA Amicus Committee asked the Board to approve Bar Association participation in three appeals as amicus. In State v. Athan, the issue was whether the police could pose as a law firm and send a fake letter inviting a suspect to join a class-action suit in order to snag DNA from the saliva on the return acceptance envelope. The integrity of the attorney-client privilege, whether the police can avoid claims of unauthorized practice of law, and other related issues were cited as concerns warranting WSBA weighing in.

Defense lawyer John Muenster argued for the brief. King County Prosecuting Attorney Norm Maleng contended the case didn’t rise to the level of WSBA’s standards for filing amicus briefs, didn’t represent a public harm, and wasn’t the right case for having the courts clarify whether the police can pretend to be lawyers.

Governor Stan Bastian moved to table the matter until the Supreme Court decides whether to accept review, and then decide whether to participate, and to what extent. The motion passed, 12-0.

The committee recommended that the WSBA not get involved in another case, Puget Sound Title Co. v. North Crescent, LLC, where the question was something about a limited practice officer exceeding her authority under the court rules. The Board agreed, 12-0.

In Tingey v. Haisch, the issue was whether RCW 4.16.040(2), setting a six-year statute of limitations for accounts receivable, applied to lawyer bills. Division II of the Court of Appeals called the question into more question. This time Governor Johnson moved to table ’til the Supreme Court decided whether to accept review. On this one the Board tied, 6-6. The president broke the tie, voting nay. A motion not to file a brief then passed, 10-2.

The Rules of Professional Conduct Committee, through member Art Lachman, presented new Formal Opinion 198 to replace 1990’s Opinion 186 regarding engagement retainers and advance payments. The law and the old opinion had drifted apart over time.

There was debate between the BOG and criminal defense and family law attorneys about how sometimes advance fees should, in fact, be considered earned upon payment. Governor Davis moved to table the matter to December to allow time for some input from the Legal Foundation of Washington, which gets the interest on lawyer trust accounts and spends it on legal services programs in the state. Davis also wanted to give an ad hoc work group chaired by Chief Disciplinary Counsel Joy McLean time to work on the issue. The motion passed, 12-1.

Governor Mark Johnson’s nomination to be WSBA treasurer was not tabled. He was elected on a 13-0 vote.

Chief Disciplinary Counsel Joy McLean brought the BOG up to date on her department’s operations and the interworkings of the lawyer discipline process. Jim Bamberger, director of the State Office of Civil Legal Aid, reported on its work. President-elect Ellen Conedera Dial reported on the progress of plans to move the WSBA’s offices to new space in Seattle at the end of 2006.

Governor Doug Lawrence brought up a King County Bar Association idea for a commission to study different regulatory approaches to the production and distribution of psychoactive substances. After what reads like a Dogs v. Cats debate (prosecutors adamantly against; permissive addict-coddlers saying, What the hell, let’s study it), a motion to table was defeated and an amended resolution in favor was adopted roundaboutly.

WSBA Legislative Director Gail Stone gave the Board a Lobbying 101 session. She also presented a resolution supporting the Public Criminal Defense budget request for additional money for parent representation and general local defense costs. It passed, 13-0.

There being nothing left to approve or table, the Board adjourned. This month they’re in Olympia, details at www.wsba.org/info/bog.