October 2008
Meet New WSBA President Mark Johnson
by Michael Heatherly
Seattle attorney Mark Johnson will serve as WSBA president for the 2008–2009 fiscal year. Johnson practices with Johnson • Flora PLLC, where he represents plaintiffs in several types of civil-damages cases including medical and legal malpractice, personal injury, product liability, and insurance bad faith. He served as the WSBA Board of Governors representative for the Seventh-West Congressional District from 2003–2006 and as WSBA treasurer in 2005–2006. He has chaired WSBA task forces on trust account treatment of advanced fees and the character and fitness rules. I recently interviewed Johnson regarding his background and key issues he is expected to face as president. — MH, editor
Q. What do you see as the three or four biggest issues that will face the WSBA and the BOG during your term as president?
A. There often is a difference between the biggest issues facing our profession and the biggest issues on which the WSBA can assert sufficient influence to effect change. For example, diversity is hugely important to our profession and not just because it is morally correct. We are a remarkably better bar, a much better profession, because of the infusion of new lawyers/young lawyers from diverse backgrounds and we cannot afford a reversal of that trend. However, the unfortunate reality is that law school is extremely expensive and law-school graduates today routinely graduate with over $100,000 in debt. I believe that will have an enormously negative impact on diversity. However, law-school debt is not an issue over which the WSBA can exert much influence. The same is true on the issue of how law students are educated. Many of us would like to see much more emphasis placed on skills training. The law schools in Washington are beginning to respond, but there is a long way to go.
As far as the biggest issues over which we do have some control, adequate funding for the courts, civil legal aid, and criminal public defense should, and will, remain at the pinnacle of our priorities. The WSBA is fortunate to participate, with multiple other groups, in the Justice in Jeopardy Initiative led by the Board for Judicial Administration. The coalition has had significant success in the Legislature during the past two budgeting years. Our Legislature has been attentive and responsive, but this year is also a budget year for the state. By all reports, given the deficits that the state and counties are facing, the Justice in Jeopardy Initiative will be hard-pressed to make additional gains. So we need to try and hold on to what has been earned so far.
And speaking of budgets, the BOG Budget and Audit Committee and the Board are continuing to work to balance the WSBA budget. We have pared down the deficit, but there is work to be done. In this regard, we are going to conduct a review of all WSBA programs. I have asked Russ Aoki, who took over as treasurer in September, to take charge of that process by way of a subcommittee of Budget and Audit, which the treasurer chairs. Russ understands that the review is a priority, and he is superbly qualified and eager to tackle the job.
Q. What motivated you to become involved in WSBA leadership, and what prompted you to run for president?
A. There were three factors that got me interested in WSBA leadership: an interest in the regulatory issues which affect the practice of law; a desire to help sculpt the solutions to those and other issues; and the opportunity to do so. During my three years as a governor, I became very invested in the organization and its mission. I ran for president because the issues on the horizon were compelling to me and I wanted to continue.
Q. On certain issues, often those that are controversial because of moral principles involved, some WSBA members oppose the BOG taking an official position, even though the issue affects the practice of law. Because WSBA membership is mandatory, it may appear that the BOG is speaking for all members, including those who have an opposing personal view. The same-sex marriage issue is a good recent example. How do you resolve the conflict between the BOG’s desire to take positions on behalf of the Bar and the fact that many Bar members may dissent?
A. Nearly every issue has some political or social component. Simply because such an element is present doesn’t mean that the BOG should not take a position on it if the issue is found by the BOG to affect the administration of justice or the practice of law. That standard, set out in GR 12, is the touchstone, and it has been my experience that the Board understands and accepts its responsibility to adhere to that standard. For some things, like court rules, GR 12 compliance isn’t disputable. But if an issue may reasonably be viewed to be outside of GR 12, the BOG takes a vote on whether it is or is not, before voting on the substantive question. On an issue that involves feelings as intense as those surrounding marriage equality, many members will be unhappy with the vote, whatever it is. That does not mean that the Board should duck contentious questions. Leadership is defined by resolving, not avoiding, tough issues.
Q. When you have time away from practicing law and your role with WSBA, what personal activities do you enjoy?
A. Not many typical “Pacific Northwesterner” types of things. I have never slept in a tent and I honestly don’t understand hiking as a hobby. Many years ago I bought a kayak and sold it after several years; it was never in the water. The store tag was still on it, in fact. I am a city kid and if I have a chance to get away (other than the occasional beach vacation) I like to go to a bigger city. My wife, Stephanie, and I have spent three of the past four Christmases and New Years in Paris. Baseball is a real passion for me. The license plate on my car is “08Cubs” in honor of the last Chicago Cubs World Series win in 1908. Aside from that, it’s reading and chess — the latter almost exclusively on a computer — and trying to keep our 19-year-old cat, Gaijin, around for another year or two.
Q. Do you have one goal that is your highest priority for your presidency? If so, what is it and how do you plan to achieve it?
A. Since the question is limited to one goal, I am tempted to limit my answer to that which Casey Stengel, the former manager of the New York Yankees, gave as his goal in managing a baseball team. Casey said the goal was to keep the 13 guys who hate you away from the 12 who are undecided. That would be a good goal to achieve, but our membership numbers, which are closer to 30,000, make that proposition somewhat unwieldy.
In truth, there is far too much pending to think in terms of a single priority. My job description is chief policy-making officer, not policy maker — that’s the BOG’s job — and spokesperson for the WSBA. I chair the BOG meetings but I don’t vote unless there is a tie, and no president is particularly enamored of being enfranchised. Certainly balancing the budget, planning for the Bar’s financial future, conducting a program review, reviewing and redrafting the WSBA Bylaws where necessary, and supporting the Justice in Jeopardy Initiative and our other legislative initiatives are priorities. We have a legislative conference call every week when the Legislature is in session. The Board has to vote on more than 20 changes recommended by an ABA consultation team brought in to review our discipline system, and those will have to be spread out over the year. There will undoubtedly be court, professional conduct, and other rule changes to consider. If the Supreme Court tells us to implement the Practice of Law Board’s legal technician proposal, we will need to re-order our finances to accommodate a significant new program which will include staffing, testing, and discipline. The Board will be occupied, to say the least.
Q. The majority of WSBA members have little involvement in the organization beyond paying their annual fees. What would your pitch be to get those members more involved? What’s in it for them?
A. I can’t criticize lawyers for not being involved in WSBA governance. It is a personal decision. Our profession is also a business, and it can be a very difficult one. Family life and making a living have to come first. But for me, I can honestly say that some of the closest friendships I have made have been with people with whom I have served on the WSBA Board. And I get a great deal of satisfaction from working through problems, particularly the regulatory issues, and helping to resolve them. Finally, I think the knowledge I have gained has made me a better lawyer.
Q. Who is the one person who had the biggest overall positive influence on you?
A. I can’t point to one person, but if I can have several, I can answer it. The answer is undeniably the children with cerebral palsy who I have represented. They have taught me more about courage, character, and coping with severe adversity than I can possibly quantify. It is impossible to work with these kids and not feel incredibly humbled. In my mind, they define beauty.
Q. What is the most important lesson you have learned as a lawyer that they didn’t teach you in law school?
A. That we all have the same number of clients and that number is one. Let me explain. Our clients generally do not want to know how busy we are or how important we may think we are. They are entitled to our undivided loyalty, but they also want our undivided attention. Almost universally, a lawyer cannot make a living on one client. So we have to instill realistic expectations in each client by honestly and openly communicating the realities of time, expense, and potential results.
Q. The Practice of Law Board’s proposal to allow licensed legal technicians to perform some lawyer-like work in family law cases became a “hot-button” issue and resulted in some acrimony between the POLB, the BOG, and others. Would you oppose similar efforts in other areas of practice? Would you support any expansion of non-lawyer practice in order to increase access to the justice system?
A. It is important for our members to know that while the Board of Governors is the policy-making body for the WSBA, the ultimate arbiter on this issue and most others is the Supreme Court. They are expected to let us know by the end of the year what we will be doing. Personally, I have never supported the POLB’s legal technician proposal, and by the time this interview is published, we will probably know what the BOG thinks about it. You are correct that the proposal has resulted in tension between groups who generally have the same goals. But that is often an unfortunate reality when people feel passionately about an issue. I have several problems with the proposal, which [BOG member] David Heller and I set out in detail in the July 2008 Bar News. In sum, the proposed program would not increase access to justice. The economic model is flawed.
In addition, there are inherent problems in allowing people whose scope of permissible services is (for good reasons) circumscribed to take legal matters they may not be able to complete without lawyer assistance. It also strikes me as elitist and divisive. We would be institutionalizing the idea of separate but unequal justice for certain clients, while the practices of lawyers who have high-end clients would be protected. To the extent that work is lost to lawyers, it would be the rural lawyers, young lawyers, and lawyers whose practices may not attract high-end clients who will bear the brunt of the economic consequences. I much prefer that we continue to work with the Alliance for Equal Justice, the ATJ Board, the Justice in Jeopardy Initiative, and other groups for additional funding for the Northwest Justice Project clinics and Columbia Legal Services, among others. We need to support the pro bono programs that several county and local bar associations operate quite effectively — I think the last statistic is that there are about 21 of those programs — and the Greater Access and Assistance Program.
Q. Like many businesses and organizations today, the WSBA faces projected budget shortfalls and belt-tightening. It appears the economy will remain sluggish into at least next year, and inflation remains a concern. The WSBA also faces a significant increase in office-space costs when the current below-market lease expires in less than 10 years. Looking into your crystal ball, tell us whether the WSBA will still be providing the services it does today and whether the annual license fee will remain affordable for all lawyers.
A. To be honest, anything I say would be a guess. The WSBA has been charged by the Supreme Court with certain mandatory functions. For example, we must give a bar exam, evaluate character and fitness, and operate a disciplinary system. The disciplinary system alone accounts for over $4 million of our budget. We must perform those functions and, although the bar exam is revenue-neutral, the costs are rising. The discussion has started on whether we should work to create an adequately funded foundation and move some of our discretionary programs into that. We have already begun the process of saving money to use at the end of our current lease. We have $2.5 million in a facilities reserve account, but we need to grow that significantly in the event we have to move and build out new space. It is not out of the realm of possibility that we may need to move out of downtown Seattle.
To me, the mandatory functions comprise the skeleton, the infrastructure of the WSBA. But the body of the Bar is our discretionary programs: diversity programs, including the WSBA Leadership Institute; the Law Office Management Assistance Program; Lawyer Assistance programs, and others. I would prefer that our Bar remain a body and not become a skeleton.
