May 2007

The Board’s Work

by Lindsay Thompson

Bellevue, March 2-3, 2007

The Board of Governors moved a lot of work across the big table in eight hours of meetings over two days. First up: the consent calendar, where items not expected to generate any controversy get placed for unanimous consent. If governors want to discuss an item, they can pull it off.

This time the consent calendar made easy sailing. The items cleared included amendments to the bylaws of the Real Property, Probate & Trust Section; revisions to the pro hac vice admission form for out-of-state lawyers; an appointment to the Character and Fitness Board; an appointment to the Civil Rights Committee; and the removal of a member of the Court Rules and Procedures Committee.

Two relatively new items on the program, the Governors’ and Liaisons’ Forums, featured announcements about things that had happened or were about to happen that someone thought everyone should know about.

Gail Stone, WSBA’s eyes and ears in Olympia when the Legislature is in session, updated the BOG on the status of bills they’d voted to support. As of mid-session, all were faring well. Once the session has ended, Bar News will carry a more comprehensive account of legislative action. The trouble with trying to do it on the fly is by the time we get the information out, it has usually changed.

Governor Eron Berg is also WSBA’s treasurer this year. He told the Board -WSBA’s auditors had managed to complete their review of the books in less than 60 days, which is something remarkable, and that they had given the Association an unqualified approval, which was expected but can never be counted upon. He urged a collective doffing of hats to WSBA staff and administration for running a tight ship, which everyone agreed was a fine and well-deserved accolade.

Berg then moved on to approval of a charter for the Board’s Budget and Audit Committee and approval of WSBA’s Financial Responsibility Matrix, a means of tracking things WSBA has to keep up with, and making sure the overall financial picture stays within budget and on target. There was some discussion of whether the BOG retains enough authority over spending decisions, and in what circumstances it ought to be able to overrule day-to-day budgetary decisions of the executive director. Governor Anthony Butler raised concerns about the flow of BOG authority to WSBA administration.

It’s a worthy concern. There are those who believe — I among them — that WSBA is evolving into a more cabinet-style governance structure, what with a president, president-elect, immediate past president, and executive director meeting on lots of things, and a proliferation of WSBA department heads at BOG meetings. The Board becomes more a consultative body, approving lots of things determined elsewhere, and focused on working its way through a thick agenda book the administration prepares for each meeting.

Mind, one has to be practical: WSBA is a big operation and there’s lots the BOG can’t effectively handle any more. In the late 1980s, for example, the Board was going over the budget line item by line item, and approving all committee nominations collectively. It took forever. So things have to be delegated. The important thing is to be mindful of the prerogatives of the institution of the BOG and take the time, now and again, to make sure what’s delegated is what should be, and that things aren’t just drifting into a tractor beam and being pulled in at the other end of the table.

But I digress. Nothing induces MEGO in governors faster than when I get going on governance matters. So let’s move on.

Paula Boggs, whose exceptional career, 24/7/365 brilliance, and excellent sense of humor — among an encyclopedic collection of other excellences — make me brag of being a slight acquaintance, gave the Board a report on the work of Washington’s delegation to the American Bar Association House of Delegates. It’s one of the most diverse in the United States, she said, and remarkably active. Boggs echoed President Dial’s pleasure at the then-pending visit of ABA President Karen Mathis to Washington. She also reported the election of another altogether excellent WSBA member, Kathleen Hopkins, as the delegate of the ABA 18th District. For reasons I cannot explain, Hopkins will represent not only Washington, but our sister states of Maryland and Indiana.

Former WSBA Governor Mark Johnson and WSBA Tax Section rep Bob Mahon told the Board about a nasty bit of Unintended Consequence arising from the Supreme Court’s adoption of a model ABA rule of professional conduct rather than the version WSBA recommended when it sent a comprehensive updating of the RPCs to the Court over a year ago. RPC 1.8(e)(1), which made lawyers liable for costs advanced in contingent-fee cases if they got reimbursed, is being interpreted by the Department of Revenue to make receipt of such reimbursements income for B&O tax purposes.

Some legislative history was laid down — President Dial chaired the RPC revisions — and everyone agreed this wasn’t at all what was intended. Governor Butler and criminal defense bar rep Tom Campbell expressed particular concern about the effect such an interpretation would have on Washington sole practitioners. So the Board voted to ask the Court to act expeditiously and restore the rule to its pre-revision form.

A stream of other excellent WSBA members, all involved in committees and subcommittees of the Committee on Public Defense, reported on progress they are making in working to rationalize and coordinate the provision of legal defense operations in Washington. Particular interest was generated by the subcommittee on the death penalty, which presented a report and asked for BOG endorsement.

Whether we should shoot up, gun down, gas, fry, or fricassee felons and serve them up on toast points, as Evelyn Waugh once wrote of a cannibal tribe in one of his novels, is, of course, a contentious matter. In 2001, for example, the BOG considered whether to urge the governor of Washington to appoint a study committee to consider the efficacy of the death penalty in light of a growing body of DNA evidence indicating a substantial chance that death penalty defendants could be wrongly convicted, and urging a moratorium while such a study pended.

And since then, the plea deal of Gary Ridgway, in which he confessed to killing 47 people and got life, has ignited an ongoing debate about standards for deciding who gets death and who doesn’t. There has also been press coverage of how one death case can nearly bankrupt any number of Washington’s smaller-population rural counties.

The BOG discussion revolved around whether to adopt some, all, or none of the report’s recommendations. When the BOG gets this sort of tough issue, it usually prefers to take its time and think about it some more. There was a motion to carry the matter over a month; the BOG split 7-7. President Dial broke the tie by voting to carry the matter over, observing she had a sense the extra time might lead to a unanimous action, one way or another, by the Board.

Reconvening on Saturday, the Board heard from former Governor Lish Whitson and President Dial on the BOG’s task force on local court rules.

Local rules have become the kudzu of Washington’s legal system. Washington has a set of rules for district and superior court procedures which have metastasized into a nightmare of 78 more sets of rules — two for each county, applicable only there. In the last 20 years, they have become a whole separate volume of court rules unto themselves, and for over a decade, various lonely voices have been crying for some effort at beheading the hydra.

Whitson, who has an admirable tenacity and patience for tasks like this, told the BOG Justice Charles Johnson has tentatively agreed to co-chair the task force, but at the same time has expressed concern that the venture won’t get much traction unless the superior court judges get on board.

But hope springs eternal, and the Board voted to direct Whitson, the president, the executive director, and Governor Sal Mungia to tweak the task force’s charter and membership roster for further consideration next meeting.

In other appointment matters, the Board named Phillip Ginsburg and Anita Crawford-Willis to the Defender Association Board, and recommended Letitia Camacho for the Interpreter Certification Advisory Commission.

Governor Eric de los Santos proposed a resolution from the Committee for Diversity, affirming the Association’s commitment to addressing issues faced by members with disabilities. It passed. Rick Rasmussen and Lael Echo-Hawk, who co-chair the committee, joined with WSBA Diversity Advocate Joslyn Donlin to give the committee’s annual report. Echo-Hawk made particular note of the strength of ties between WSBA, the committee, and the minority bar associations, and expressed confidence that matters will move ahead equally promisingly. 

Additional information about the Board of Governors and minutes of meetings can be found at www.wsba.org/info/bog.