February 2008

The Board's Work

Program Review, Immigration Ethics, and Financial Policies on the Docket

by Michael Heatherly

December 7–8, 2007
Everett, Washington

The upcoming departure of one BOG member, a proposed overhaul of WSBA committees, and reports from several bar-related organizations highlighted the December 7–8 BOG meeting in Everett.

Governor Jason Vail, who represents the Washington Young Lawyers Division, announced he will resign from the BOG after the March meeting. He is relocating to Chicago to take a position with the Sargent Shriver National Center on Poverty Law. The process to replace the WYLD BOG member requires the WYLD Board of Trustees to nominate two or more candidates, from which the BOG elects the replacement. WSBA President Stanley Bastian urged the WYLD and BOG to move swiftly so a replacement would be in office by the April meeting. The BOG approved a motion to conduct the election at the March meeting.

WSBA Executive Director Paula Littlewood presented a preliminary report regarding an ongoing comprehensive review of the structure of WSBA's more than 35 committees, boards, and panels. The review is part of a WSBA strategic goal to systematically evaluate all the association's programs to ensure they are in keeping with WSBA's mission statement and guiding principles. No BOG action was requested at the meeting. Littlewood, the WSBA department directors, and the Strategic Planning Committee expect to further refine the recommendations before requesting BOG approval. Two initial recommendations that prompted discussion by BOG members involved limiting most committees to 14 members (down from 28 or more on some committees currently) and creating a more comprehensive appointment process. In place of the current process, which relies heavily on members taking the initiative to volunteer in response to the annual Committee Application Form, the revamped process would include active outreach to potential committee members through networks, such as county, minority, and specialty bars; WSBA sections; and the WYLD. Goals would include greater geographic, ethnic/racial, and practice-area diversity as well as inclusion of newer WSBA members.

The BOG was presented with an interim report by Lish Whitson, co-chair of the Local Rules Task Force. The task force was created in hopes of reducing the ongoing proliferation of local rules enacted by counties across the state. Local rules, which can differ drastically from county to county, often prove a hindrance to lawyers, especially those who practice in more than one county. Whitson pointed out that the numbering of local rules is often confusing and not properly coordinated with the numbering used in the state rules. In some instances, local rules simply fail to comply with the state rules, he added. The task force expects to present an evaluation from its membership — including judges, lawyers, and court administrators — at the January BOG meeting. The task force was assigned to complete its work and bring recommendations to the BOG by spring 2009. Possible solutions range from an effort to convince counties to better coordinate their rules to abolishment of most local rules.

Meanwhile, the BOG heard testimony and took action on an ethical issue raised by several civil rights and minority bar organizations. A previously withdrawn Formal Opinion (No. 167) had explicitly prohibited attorneys from threatening to report a person to immigration authorities in order to intimidate the person in an unrelated civil matter. The opinion had been withdrawn at least in part because it was based on the old ethics that were supplanted by the current RPCs. Although the practice of using such a threat to intimidate a party or witness presumably would be prohibited by general provisions of the current RPCs, the lack of a current formal opinion or specific RPC on the subject has created a loophole that has been exploited. M. Lorena González, president of the Latina/o Bar Association of Washington, told the BOG that her organization's concern was prompted by an incident in which a Latina litigant was picked up by immigration officials during a court proceeding, apparently after being reported by opposing counsel. Dan Ford, of Columbia Legal Services, stated that another lawyer accused of using such a threat successfully escaped sanctions by pointing out that the prior formal opinion had been withdrawn. The BOG passed a motion to direct the RPC Committee to draft a new formal opinion to explicitly ban the practice and to draft an RPC that would specifically address the practice as well.

Following up on an item from the October BOG meeting, the board clarified its policy on two items involving expense reimbursements. The board approved a provision stating that hotel/motel accommodations for a BOG member or WSBA officer may be reimbursed where an overnight stay is "reasonable and prudent" in order to attend a required event. The board also approved a provision stating that for the spouse, domestic partner, or guest of a BOG member or WSBA officer, the WSBA would pay for group meals (or individual meals if no group meal is provided) at BOG meetings as well as reasonable transportation costs for travel to and from BOG meetings.

The BOG reviewed a preliminary summary of WSBA's finances for fiscal year 2007. The unaudited figures, which could differ slightly after final review, show that the total balance of all WSBA funds as of September 30, 2007, was $9,017,925, up $564,899 from the same date in 2006. The board approved four actions in that regard: 1) consolidating the Facilities Reserve Fund into a single fund (rather than the split fund used to facilitate the move to the new WSBA offices), 2) designating $500,000 of unrestricted net assets to the General Fund reserves ($55,000 to the Board Program Reserve Fund and $445,000 to the Facilities Reserve Fund), 3) designating a gain of $34,601 on investment of the General Fund Reserve as part of the reserve itself, and 4) authorizing the WSBA officers to allocate up to an additional $250,000 to the Facilities Reserve Fund, with the exact amount depending on the final financial figures after auditing.

Kristin Olson, president of the Washington State Bar Foundation, and Ronald R. Ward, trustee of the organization, presented the foundation's annual report. They advised the BOG that the nonprofit foundation is at a "crossroads" and likely will need significantly increased revenue to continue and expand its funding of programs, which includes loan repayment assistance, scholarships, and support of other bar-related service and educational organizations. The foundation's total net cash balance was $137,633 as of September 30, 2007. Ward suggested a figure of $1.3 million as being more realistic for the foundation to effectively carry out its mission, given the greater role that such foundations are being asked to play nationally and locally. The foundation is expected to return to the BOG at the March meeting with a specific proposal, which might include a dues check-off system to encourage contributions from WSBA members and a contract with an outside development director for fundraising.

The board viewed a video entitled "Justice for All: Our Profession, Our Responsibility," produced by the 2007 class of the WSBA Leadership Institute, a leadership development program for newer lawyers with diverse backgrounds. The video, which is on DVD and linked to the preadmissions area of the WSBA website (www.wsbacle.org/preadmission), uses true stories and testimonials to encourage lawyers to participate in pro bono work.

The BOG also received a report of the Washington Young Lawyers Division, presented by President Mark O'Halloran. O'Halloran reported on WYLD meetings conducted in October in Seattle and December in Bellingham. 

Bar News Editor Michael Heatherly practices in Bellingham and can be reached at 360-312-5156 or barnewseditor@wsba.org.