May 2009

WSBA Board of Governors Meeting
March 6–7, 2009 — Seattle

by Michael Heatherly

At its regular meeting on March 6–7, 2009, in Seattle, the WSBA Board of Governors voted down a proposal to institute mandatory arbitration of fee disputes. As the BOG had previously dissolved its voluntary fee arbitration program and its mediation program, fee disputes now will lie entirely in the realm of private dispute-resolution efforts and the courts.

While some BOG members expressed personal support of a fee-dispute-resolution program in concept, most reported strong opposition among their constituents to a mandatory program. The proposal for a mandatory program originated with a non-binding 2006 review of the WSBA disciplinary system conducted by the ABA. The ABA recommended a “client-option” arbitration system in which an attorney would be required to participate in arbitration if a client submitted a fee dispute to the program.

Several BOG members said they had been contacted by WSBA members concerned that some clients might abuse the system by forcing attorneys to arbitrate baseless disputes. They noted that because the Rules of Professional Conduct require lawyers to keep disputed fees in trust, fees could be tied up for months pending arbitration, even if the fees were ultimately found to have been properly earned by the lawyer. Solo and small-firm WSBA members who work on a contingent-fee basis would be especially vulnerable to having their fees held up, noted Governor Lori Haskell.

Governor Loren Etengoff said he supported the concept of fee arbitration but acknowledged that significant opposition to a mandatory system exists among WSBA members. Pursuing the proposal further would be a waste of WSBA resources if most members didn’t support it.

The Board voted unanimously to abandon the proposal, with Governor Anthony Gipe abstaining. He had suggested tabling the measure and allowing time to consider whether more thorough explanation of the proposed program to membership might temper opposition.

In a separate matter, the BOG voted to reject a WSBA member’s request to be provided with the individual salary amounts of all WSBA employees. The WSBA had provided a list of all WSBA employees’ names and job titles as well as documents showing the salary ranges for WSBA job titles. However, the member insisted on a list that would explicitly show each individual employee’s salary. WSBA staff denied that request and the member appealed the decision to the BOG.

Although the WSBA has been held as exempt from the Public Disclosure Act, the member argued that the organization is, in effect, an arm of the judicial branch of government and should recognize an ethical obligation to disclose any financial information requested, as a government entity would be required to do.

He did not disclose what purpose he had in mind for the requested information. Instead, he based his request on the general proposition that WSBA members would have greater confidence in the organization if such information were available. BOG members responded that any information regarding WSBA’s budget could be gleaned from data already provided. The remaining information — showing the exact salary for each WSBA employee — would do nothing but invade employees’ privacy, they suggested. The BOG voted to uphold the denial of the request, with Governor Catherine Moore dissenting and Governors Lori Haskell and Carla Lee abstaining.

Meanwhile, the Board watched a presentation from WSBA Diversity Program Manager Chach Duarte White regarding demographic information from the WSBA and the State of Washington from which she hopes to track ethnic and gender trends in the legal profession. Duarte White cautioned that it is difficult to draw sound conclusions from WSBA membership information to date, because WSBA relies entirely on voluntary self-reporting of data. A significant proportion of WSBA members decline to respond to the demographic questions.

Generally speaking, it appears that the percentage of ethnic minority members among total WSBA membership is highest among lawyers in practice for no more than 10 years (10.18 percent). The percentage is progressively lower among those in practice 11 to 20 years (7.99 percent) and 21 years and over (3.66 percent). However, 41.68 percent of WSBA members in the 10-years-and-under category did not report their ethnicity, leaving the conclusion and the percentages in serious doubt. Regarding gender, the percentage of female bar members is highest among those in practice 11 to 20 years (36.17 percent of all members), as compared to 32.09 percent for those in practice no more than 10 years and 19.92 percent for those in practice 21 years or more. As with ethnicity, however, the picture is clouded by a high number of non-responses (36.45 percent among members in practice no more than 10 years, for example).

Although limited in utility by the non-responses and other factors, the current numbers at least provide a baseline from which future trends can be identified, Duarte White said. In a related matter, the BOG will consider an updated mission statement for the BOG Diversity Committee at the April 24–25 meeting in Richland.

In other business, the BOG:

•  Approved a slate of procedural revisions to the lawyer discipline system as part of a year-long project stemming from recommendations by the American Bar Association and WSBA Discipline Review Committee.
• Heard from WSBA Leadership Institute Co-chairs Judge Mary Yu and James Williams regarding operational latitude for the continued smooth functioning of the Leadership Institute. The WSBA Leadership Institute, now in its fifth year, is a nationally recognized and award-winning program.
•  Voted to continue Bar News, Resources (annual membership directory), and Casemaker (open access legal research service) in their present forms. The action was part of an ongoing review of all WSBA programs.
•  Heard the annual report from the Council on Public Legal Education by Co-Chair Judge Marlin Appelwick. The council promotes public understanding of the law and civil rights and responsibilities.
•  Endorsed a number of proposed revisions to the Rules of Appellate Procedure. The Board’s endorsements will be forwarded to the Court of Appeals Rules Committee, which will take the WSBA’s input into account before sending a final proposal on the rules to the Supreme Court.
•  Passed a resolution in honor of Joseph H. Gordon Sr., celebrating his 100th birthday. Gordon, admitted to the bar in 1935, co-founded what is now known as Gordon Thomas Honeywell Malanca Peterson & Daheim, one of the 10 largest law firms in Washington. Among numerous other accomplishments, he formerly served as a governor for the WSBA and for the American Bar Association.
•  Heard a quarterly report from the WSBA Young Lawyers Division, presented by WYLD President Jaime Hawk. Recent and upcoming public-service projects sponsored by WYLD include the YMCA Youth and Government Mock Trial Competition in Olympia, the Youth and Law Forum in Seattle, and the Pre-Law Student Leadership Conference in Yakima. 

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.”