June 2005

The Board's Work

by Lindsay Thompson

Spokane, April 22, 2005

Another short meeting. Changes in the agenda resulted in the usual Saturday morning session being dropped entirely. But it’s always fun to go to Spokane: lots of construction downtown, people moving back into town, interesting stuff going on. Thanks for the Get Lit literary festival in nearby Cheney (Seattle hasn’t been able to come up with anything remotely like it in quality of programs and caliber of guest speakers, ever); writer David Sedaris and former NPR anchor Bob Edwards were in town.

Sadly, President Ron Ward wasn’t, having been felled a few days earlier by a gallbladder attack that required surgery. President-elect Brooke Taylor presided over the Spokane meeting, reporting that President Ron emerged in fine fettle and will be back on the job after a week or so’s rest.

Originalism vs. The Living Evidence Code: Court Rule Committee Chair David Swartling brought the BOG a policy question his group has been pondering: Have the comments to the Evidence Code become outdated since they were adopted in 1979? Should they, therefore, be deleted? Six members of the committee wanted to keep them, 10 didn’t. Some thought case law is sufficiently well developed and easy to find, that they aren’t needed any more.

The question spurred a lively debate that ran about 40 minutes. There were motions and amendments and motions to table and a fine time was had among the parliamentarians in the group. In the end, the Board decided this is the sort of question on which member input ought to be sought, and deferred further consideration to their June meeting. In the meantime, you can read more about the proposals on the WSBA website, www.wsba.org/lawyers/groups/courtrules.

Circuit breakers: Of the making of proposals to split the 9th U.S. Circuit Court of Appeals there is no end, it seems. The Board heard the pros and cons of doing it (there are two bills in Congress, one to split it two ways; the other, three) from Spokane attorney Les Weatherhead (con), federal judge William Fremming Nielsen (pro), and federal judge Robert H. Whaley (con). Each side wanted the BOG to adopt a resolution supporting his position.

General Counsel Bob Welden minuted the Board on past actions on the subject. In 1971, they voted to support a proposal by Judge Eugene Wright to create a new circuit headquartered in Seattle. In 1982, the Board voted unanimously to support legislation by Senator Slade Gorton to create a new Northwest Circuit, and declined, a month later, to reconsider, 5-3-1. The last time the matter came up was in 1989, when Senator Gorton and Judges Betty Fletcher and James Browning debated the idea before the BOG. They voted 6-4 to retain their previous position that time. 

Fifteen years on, the arguments haven’t really changed. Those who want to break up the Circuit say it’s too big, too liberal, and too slow. Opponents say no it isn’t; the Circuit works well and efficiently; and a split circuit would still result in a massive California Circuit, would likely force the creation of an intermediate court below the Supreme Court to harmonize decisions of so many circuits, and that it would cost a hundred million dollars to break up the 9th.

Attorney Weatherhead posed an interesting idea: Instead of arguing the 9th Circuit is too big, maybe we ought to wonder if some of the other, more eastern circuits are too small. Maybe we have too many, not too few, he added. Governor Katie O’Sullivan, who drew on experience of clerking at the D.C. and 9th Circuits, drew some interesting comparisons on law life on each coast and noted that in 1989, then WSBA Governor Ron Gould favored a split, citing his clerkship in the smaller, more collegial 6th Circuit. Now, O’Sullivan commented, Judge Gould sits on the 9th Circuit and opposes the split, as do most of the rest of the judges.

Running through the discussion was a meditation on the acrimonious debates in Congress on a federal judiciary run amok, and whether the split-up bills are payback for things like the Pledge of Allegiance decision. Opinions differed on that as well, but in the end, governors’ opinions seemed to coalesce around the idea that with so much background noise in the national debate, now’s not the time to do something as dramatic as splitting the Circuit. They voted, unanimously, to oppose a split. President-elect Brooke Taylor, presiding, chuckled and told the gathering, “It’s not very often I get to tell two federal judges when they can talk and how long.”

Process, we’ve got process: Seattle U. law professor John Strait and Spokane County Deputy Prosecutor Steve Garvin appeared before the Board to ask for a waiver of a BOG rule that WSBA sections can’t take positions contrary to a Board decision without getting advance approval. The requirement is intended to keep the Bar Association speaking with one voice on things like court rule changes, and making sure if there is going to be a difference in views, everyone knows about it.

Strait and Garvin appeared for the WSBA Criminal Law Section executive committee. They wanted to comment to the Supreme Court on a change to RPC 8.3, approved by the BOG last year as part of the omnibus revision of the Rules of Professional Conduct, requiring lawyers to report misconduct by opposing counsel when they see it. The change was made in an amendment offered by former Governor Jon Ostlund. Adopted, it overruled the recommendation of the Ethics 2003 Committee to leave the rule discretionary.

Strait told the BOG his group was concerned that in the criminal law arena, where passions run high and many of the lawyers are relatively new, a mandatory misconduct reporting requirement would likely be used as a gotcha tool against each other. Garvin said he’d seen that sort of thing in California, where he worked before moving north. Strait argued that the section relied on an understanding that the ethics recommendations would be adopted as presented by the committee, and since the amendment of this rule came from a governor on the floor of a BOG meeting, they were shut out of an opportunity to comment.

A fairly lengthy roundtable discussion followed. Although the question was whether to grant the exemption, much of the comment seemed to gravitate back to the merits of the rule itself. It became apparent that some governors would have liked a chance to rethink their vote on the merits. Others thought the Section had been well wired into the drafting process and could have commented plenty. Strait replied, well, we didn’t on this because when it came to you it reflected our position, but it came out the opposite, so how could we?

In the end, the BOG voted 9-5 to let the executive committee comment on the rule to the Supreme Court. Some governors indicated a desire to formally reconsider the reporting requirement at the next meeting, but others pointed out that by then the Supreme Court’s comment period will have closed, so what good will it do if we take a contrary position? That question went unanswered, and there the matter lies.

Former Governors Jon Ostlund and Bill Hyslop of Spokane then gave the BOG a report on the work of the Committee on Public Defense, a new body intended to rationalize the public-defense system in Washington. The report was informational; since the committee is at an embryonic stage there’s not much concrete to tell here, and now.

Gotta start somewhere: Breaking for lunch, the BOG had one of its “listening lunches” with a handful of Spokane County Bar members and leaders to find out what sorts of issues there are, if any, in terms of the diversity of their Bar membership, and how bias issues may impact lawyers’ ability to thrive in practice in the region. The past and current presidents of the County Bar spoke, as did two Hispanic students at Gonzaga Law School. Bill Maxey summarized the arrivals and contributions of members of various ethnic groups in the county’s legal culture, and President-elect Taylor subbed some remarks for President Ward.

All in all, it was an interesting and informative meeting, but it would have been nice to have more local lawyers there.

Olympia wrap up: Legislative Liaison Gail Stone reported to the Board by telephone, as the Legislature was breathing heavily against a goal of adjourning on time and was therefore likely to be putting in long hours over the weekend. Because the budget hadn’t been passed, the question of funding for legal services was up in the air. WSBA-sponsored bills fared well this session, Stone said.

The president-elect of the Washington Defense Trial Lawyers Association gave the Board what-for over what he felt was insufficient process in the BOG’s taking of decisions on the various tort reform measures in the Legislature this year. Not hardly, several members responded, recounting how they’d bent over backwards to process the thing to death, but when things move fast, sometimes you gotta just decide and move on to the next thing.

The colloquy was inconclusive, as debates about tort reform always are. You’re on one side, or you’re on the other. It’s a cat vs. dog issue, endlessly debated, ultimately irresolvable, and remarkably divisive.

A hard-working group hang up their hats: The next item was a hearty thanks for former Governor Joe Nappi Jr., who, having chaired WSBA’s Member Benefits Task Force the last four years, bringing a variety of insurance products to members, recommended that the task force be disbanded. There were congratulations all around for a job well done, and Nappi was given an award by the board for his service leading the task force.

A mid-afternoon snack of more process: Governor Mark Johnson presented the results of another task force, one charged with codifying the operating rules of WSBA’s Character and Fitness Committee. It’s where applications for admission — or readmission — go when either appears problematic. Johnson told the Board the committee’s rules have been a bit like the English Constitution — a random collection of memos and decisions and the institutional memory of a few people who handle those sorts of cases, and could result in similarly situated people getting opposite results from the committee on the same day. The task force’s goal was to produce the best set of rules of their type in the United States, and after some discussion the BOG voted to postpone action to no sooner than July and to make the proposed rules available to members.

Money: Treasurer Joni Kerr presented a request from the Business Law Section to overspend its budget via a $40,000 tap on its reserves. They want to produce an RCW sourcebook. Good idea, the BOG agreed. Kerr also presented two information technology projects to help finish the upgrade of WSBA’s computer and data systems. The $90,000 cost would come from about $900,000 that has already accrued in savings as a result of the modernizations to date. Everything passed unanimously.

WYLD update: Young Lawyers Division President Steve Marsalis gave the Board a 10-minute update on their work, which continues, as usual, in a hundred directions at once, and always productively.

More mandatory ideas: An idea championed by General Counsel Bob Welden is to require WSBA members to disclose in some manner whether they have professional liability insurance. The thought is that this will assist the public in choosing lawyers. A draft rule to that effect was floated, but the discussion hung up over (1) “What, another mandatory thing?” and (2) what form(s) the disclosure requirement might take. Visions of large and tacky disclosure language on one’s letterhead began forming in some minds. It got tabled for another day.

And that’s it for Spokane. I’m outta here.