March 2008

Meeting in the Capital

by Michael Heatherly

January 17, 2008
Tumwater Valley Lodge, Olympia

With blue skies above and a chill in the air, the Board of Governors met on January 17, 2008, at the Tumwater Valley Lodge to tackle issues including a potential shortfall in the Lawyers’ Fund for Client Protection. While in the Olympia area, the BOG also hosted a reception for legislators and had a dinner and meeting with the justices of the Washington State Supreme Court.

Christopher Mertens, chair of the Lawyers’ Fund for Client Protection Committee, reported to the BOG concerning applications filed for compensation regarding a former Everett attorney, Barry A. Hammer, who resigned in lieu of disbarment and filed for Chapter 7 bankruptcy protection following allegations of impropriety relating to a real estate investment business he operated. Pending applications in the case claim total losses of more than $3.6 million, and further applications are expected, Mertens reported. Even after applying the program’s $75,000 per-claim cap, the potential liability of the claims totals nearly $1.7 million. That exceeds the $1.09 million projected to be available from the fund for the fiscal year to cover all claims, not just those involving the case at hand. The BOG considered possible solutions, including increasing the current $15-per-member annual assessment for the fund, imposing a special assessment, reducing the per-claim cap, or prorating claim payments. Noting that all payments from the fund are entirely discretionary, BOG members rejected the notion of increasing all members’ assessments to cover claims caused by one member’s actions. Upon motion by Governor Salvador Mungia, the BOG voted to instruct the fund committee to operate under the assumption that no special assessment or other change will be instituted to increase available funds. The committee is to defer further payments through September, the end of the fiscal year, then pay claims pro rata from then-available funds.

The BOG voted to endorse a proposed American Bar Association resolution calling for the federal government to refrain from preempting the states in enforcing marijuana laws. “States should be allowed to adopt and implement legislation governing the production, distribution and use of marijuana,” the resolution reads. “[F]ederal law should not impede or preempt the exercise of state authority in this area.” Supporters of the resolution include the King County Bar Association, whose Drug Policy Project promotes shifting the focus of drug enforcement from criminal prosecution to regulation and rehabilitation. Meanwhile, BOG members voted to oppose a proposed ABA Model Rule that would have allowed a bar applicant to be conditionally admitted to practice law after recently undergoing treatment for chemical dependency, mental illness, or other illness rendering the applicant unfit to practice law, and where the applicant still required monitoring to ensure protection of the public. WSBA General Counsel Robert Welden noted that the rule would conflict with Washington Admission to Practice Rule 24.2(c), which requires at least a two-year recovery period from chemical dependency or an expert’s opinion that the recovery had been adequate.

James Bamberger, director of the Office of Civil Legal Aid (OCLA), and Aberdeen attorney Thomas Brown, a member of the organization’s oversight committee, reported on OCLA’s operations. OCLA is an independent agency of the state judicial branch that obtains and distributes funding for various civil legal aid programs benefitting low-income Washingtonians. They reported that the state’s “justice gap” — the difference between the level of funding needed to adequately provide civil legal assistance and the actual funding available — has been reduced from $18.3 million in 2004 to approximately $12 million.

WSBA Civil Rights Committee Chair Tracy Flood reported to the BOG regarding the committee’s investigation of incidents of racial harassment in 2005 in the Grays Harbor area and proposed several remedies, which focus on public education. She also advised the Board that petitions are circulating to create a WSBA section based on the Civil Rights Committee, which would provide increased resources for such activities as the harassment investigation.

The BOG reviewed the final, audited financial figures for the fiscal year ended September 30, 2007, which showed a net fund balance that was more than $1.3 million better than what had been projected for the year.

Board members discussed an ambiguity that had arisen from a 2004 BOG action involving permission for law students to join WSBA sections. Language was unclear as to whether law students were allowed to join any WSBA section or only those sections whose bylaws explicitly provided for student membership. The BOG voted to allow current law student members to remain on sections but to defer a final decision on the issue until the section leaders have an opportunity to comment.

The BOG voted to amend the WSBA Bylaws to allow governors elected to fill a vacancy who serve 18 months or less to run for re-election. Under the current rules, governors may not run for re-election. Consideration of the new rule was prompted in part by the recent resignation of Jason Vail, the BOG member representing the Washington Young Lawyers Division, who now must be replaced. Board members discussed how to reach a balance between keeping former BOG members — and their valuable experience with WSBA issues — involved in WSBA governance, while ensuring that new voices are heard by a regular turnover of governors each term. The BOG will consider a second related proposition later: whether to allow a governor to run for election again after sitting out at least nine years.

Board members voted to recommend that the Washington State Supreme Court adopt amendments to the Rules of Appellate Procedure that would expedite the handling of juvenile dependency disposition orders and orders terminating parental rights. A Supreme Court task force proposed the changes, which are meant to speed finalization of adoptions, which currently must be delayed while the disposition and parental-rights orders make their way through the courts.

The BOG also approved the following appointments: William Garcia, to the WSBA Leadership Institute Advisory Board; ¬Matthew Reiber, C. Robert Wallis, and Rachel Miyoshi, to the Bar Examiners Committee; Julia Bahner, alternate, to the ABA House of Delegates; Shannon Smith, Julia Gold, Diana Singleton, Margaret Fisher, the Honorable Mary Fairhurst, the Honorable Marlin Appelwick, Paula Fraser, and Will Linser, to the Council on Public Legal Education. 

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