March 2009

The Board’s Work

WSBA Board of Governors Meeting January 22–23 — Olympia

by Michael Heatherly

At the Board of Governors meeting January 22–23 in Olympia, the BOG intensely debated the concept of separating the lawyer disciplinary system from the WSBA, but voted to continue the program’s existing structure, with changes to ensure its continued integrity. Meanwhile, the BOG voted to dissolve the WSBA mediation and voluntary fee arbitration programs but continued to consider creating a mandatory fee arbitration system.

This fiscal year, the BOG is considering a lengthy set of recommendations regarding the disciplinary system. The system operates under rules enacted by the state Supreme Court, but is administered by WSBA staff and headquartered at the Bar office in Seattle. The recommendations being considered originated with a 2006 review of the disciplinary system by the American Bar Association Standing Committee on Professional Discipline. The review was voluntary and had been invited by the Supreme Court (at the WSBA’s request). The ABA recommendations, which are not binding, were then evaluated by the BOG Discipline Review Committee, which made its own recommendations to the Board.

Probably the most sweeping and controversial issue taken up by the BOG was whether the lawyer disciplinary system should be entirely separated from the WSBA, administratively and physically, a recommendation made by the ABA when it first reviewed Washington’s discipline system in 1993. Although the program has not been found to be improperly influenced by its connection to the WSBA, reestablishing it as a separate entity would eliminate even the appearance of unfairness, in the ABA’s view. The BOG Discipline Review Committee rejected that idea as being unnecessary and inefficient. Such a change would require the current disciplinary system, the largest single operation the WSBA undertakes, to be dismantled, then recreated elsewhere and operated under the auspices of the Supreme Court.

Instead of separating the disciplinary program from the WSBA, the Discipline Review Committee recommended maintaining the current system while adding safeguards to protect it from potential improper influence by the Bar. At the center of the proposal is creation of a Disciplinary Advisory Roundtable (DAR), a panel that would include a Supreme Court Justice, the chair of the Disciplinary Board, the chief hearing officer, lawyers and non-lawyers, as well as WSBA staff and officers and a BOG member. The panel would operate on a two-year trial basis, after which the BOG could recommend that the Court implement it by rule if it proved effective. The DAR would serve as a forum for discussion of disciplinary issues and act as an ombudsman for complaints regarding the system. It would report and recommend disciplinary program improvements to both the Supreme Court and the BOG.

Ultimately, the BOG approved the Discipline Review Committee’s recommendation, including creation of the DAR. The vote was 7–6 after testimony and lengthy debate centered on the inherent conflict between WSBA’s dual roles as a trade association and a regulatory body. Proponents of separating discipline from the WSBA included Professor Thomas Andrews, of the University of Washington School of Law, an expert on legal ethics and administrative law. Andrews was a member of a Discipline Review Committee task force that evaluated the proposal. He acknowledged that, by all accounts, the current system provides fairness in disciplinary proceedings and is free of improper influence. However, he argued that, as long as the system is connected with the WSBA, it will lack the appearance of absolute fairness and be vulnerable to improper influence by future Bar leadership who might overstep their bounds.

WSBA Chief Disciplinary Counsel Doug Ende acknowledged that if a disciplinary program were being created from scratch it would be best — in theory, at least — to make it independent of the WSBA. However, the program as it exists operates fairly and efficiently, and removing it from the WSBA now would be a huge undertaking, Ende urged the Board to consider carefully the transitional burdens that would be involved in severing discipline from the WSBA before undertaking a project of such magnitude.

Meanwhile, the BOG considered but delayed action on another recommendation from the ABA, to create a “client-option” arbitration system for fee disputes. Under the system, an attorney would be required to participate in arbitration once a client claimed a dispute had arisen involving fees. The WSBA has operated a voluntary Fee Arbitration Program, but the program has been underused (see below).

BOG members and WSBA staff debated the pros and cons of the client-option system. Proponents, including WSBA General Counsel Bob Welden, argued that helping resolve lawyer-client fee disputes is a public service the Bar should provide, and making arbitration mandatory for attorneys is the only way to ensure sufficient participation to justify the program’s existence. The existing voluntary system is underused, and thus cost-ineffective, primarily because attorneys routinely decline to participate.

Some BOG members and others raised concerns that WSBA members will object to imposition of a mandatory program that would force them to participate in arbitration over client claims that might lack merit. Others questioned whether the existence of mandatory fee arbitration might require lawyers to report such disputes to their malpractice carriers, no matter how small or groundless a claim might be. Some suggested arbitration be subject to limitations or differing rules based on dollar amounts and the types of fees in dispute. Eventually, the Board voted to table the issue and have staff address the details raised in discussion. The Board is to take up discussion of the matter again at the March 6–7 meeting in Seattle.

Regardless of the future of mandatory fee arbitration, the BOG voted to discontinue the existing WSBA Alternative Dispute Resolution Programs, which offered voluntary fee arbitration as well as mediation of all types of disputes involving Bar members. Over the past three years combined, only 70 proceedings have been conducted under the ADR program. Meanwhile, the program has resulted in a net loss to the WSBA budget totaling $48,720 in fiscal year 2008 and a projected net loss of $59,357 for the current fiscal year. Instead of operating its own program, the WSBA will direct attorneys and clients seeking voluntary arbitration or mediation to private ADR organizations. The Bar is working to arrange for these services to be provided pro bono or at low cost by the organizations. WSBA staff whose work included ADR tasks will have that time reassigned to other programs.

In other business:

• The BOG voted to ask the WSBA Local Rules Task Force to fast-track a set of amended family law rules that would apply statewide and are designed to streamline what is seen as a hodge-podge of confusing and conflicting local rules enacted by the various Superior Courts over the years.

• Board members heard a report from the Planning Ahead Committee, formed to address the problem of older attorneys becoming disabled or dying while still in practice and without a plan for another attorney to take over files and assist clients. The BOG authorized the committee to develop a set of educational materials to be disseminated by the Continuing Legal Education and Law Office Management Assistance Programs.

• BOG members approved the charter for a Council on Public Defense. The council will be the permanent incarnation of the Committee on Public Defense, established in 2004. The council will monitor, recommend improvements, and create educational materials relating to public defense services throughout the state.

• The Board voted to switch from all-paper balloting for BOG elections to a system that would allow members to vote either by paper ballot or online. The change is designed to reduce election costs and increase participation. Over the past three years, only 13 to 24 percent of eligible voters in contested BOG races have returned their ballots. 

Michael Heatherly is the Bar News editor and can be reached at barnewseditor@wsba.org or 360-312-5156. For more information on the Board of Governors and Board meetings, see www.wsba.org/info/bog. For more information on issues addressed by the Board, visit the WSBA website at www.wsba.org and click on “News Flash” under “WSBA News and Information.”