June 2007

The BOG Report

by Jason T. Vail

In my continuing effort to ensure that young lawyers are aware of the actions taken by the WSBA Board of Governors (the “BOG”), I am reporting here on the past two meetings of the BOG that have occurred since the last issue of De Novo went to press.

The BOG met in Bellevue on March 2, 2007. A great deal of the meeting time, both in public and executive sessions, was consumed with the selection of the next executive director of the Bar Association. The Board created an Executive Search Committee last year following the announcement of then-executive director Jan Michels of her intent to retire. The committee conducted an exhaustive nationwide search, reviewed numerous résumés, conducted a series of interviews, and finally narrowed the field of potential candidates for interview by the WSBA staff, various stakeholders, and the BOG itself. After carefully considering the input of all parties and the recommendation of the committee, the Board selected Paula Littlewood, who accepted and commenced her duties as executive director on May 1. Having participated in this process, I am confident that Paula will do an excellent job and will be particularly attentive to the needs of the young lawyers of Washington.

Another issue arising at the Bellevue meeting was a proposal by the Washington State Department of Revenue (“DOR”) to extend Business and Occupation (“B&O”) tax liability to attorneys who advance litigation and other costs to clients. This tax would directly affect those attorneys who advance these costs under contingency fee agreements. The actions of DOR in this regard were prompted by the recent change in RPC 1.8(e) that no longer requires attorneys to make clients ultimately liable for these costs under a contingency fee agreement. Following a presentation by former WSBA Governor Mark Johnson on the matter, the Board voted to recommend to the Washington Supreme Court that the rule be changed back to its former state in order to avoid this wholly unanticipated tax consequence for attorneys. As of this writing, it appears the court has adopted the Bar’s recommendation and the rule change will be made.

The BOG also received a lengthy presentation by on the final report of the Committee for Public Defense and its seven subcommittees. These committees reported and made recommendations on the death penalty, education, juvenile defense and representation, mental illness and sex offender civil commitments, non-legislative fixes for enforcement of standards, and system efficiencies and legislative changes. In particular, the Death Penalty Subcommittee sought approval and adoption of its report and recommendations, as well as extension of its charter. After discussion by the Board, we determined that we should take the time to seek input from our constituents on this important topic before taking a final vote on the matter.

Finally, the Board received a report from the newly-forming Local Rules Task Force. This group is seeking to review the proliferation of local rules in Washington and make recommendations for improvement that might simplify and streamline the increasingly complex and disparate local rules among Washington’s county courts.

The BOG’s subsequent meeting in Kelso on April 13, 2007, proved equally interesting. The Board approved an extremely modest increase in the per-member charge for WSBA’s sections, recognizing the importance of the work of sections to the Bar and with the intent to develop a long-term policy regarding WSBA’s financial support for the sections. The Board also appointed WSBA immediate past-president S. Brooke Taylor to serve as a WSBA representative in the ABA House of Delegates.

The BOG then returned to the final report of the Death Penalty Subcommittee, held over from the March meeting. After a lengthy and thorough discussion of the report and consideration of the various submissions of interested parties, the Board voted unanimously to approve and adopt the report and its recommendations. The report in its entirety can be found at www.wsba.org/websitepostingfinal32707.pdf.

Finally, the Board received a preview of the report by the MCLE Board on its review of rules regarding Admission to Practice (“APR”) Regulation 104(e). Among other things, this regulation, made effective by the Washington Supreme Court and due to begin enforcement on June 1, 2006, places a limit on the number of CLE credits that attorneys and earn from in-house seminars. This credit limit has caused a great deal of concern among law firms that routinely host in-house CLEs for their attorneys. The MCLE Board has been looking at the matter and the BOG expects to receive a full report and recommendations at the June meeting in order to take action on the issues that have been raised regarding the rule. I welcome your input and thoughts on this or any issues that come before the Board of Governors. Also, the full minutes of these meetings can be found online at www.wsba.org/info/bog/minutes+2006-2007.htm. Please be in touch.

Jason T. Vail is the WYLD Governor on the WSBA Board of Governors. His regular reports on the BOG can be found online at “The BOG Blog,” http://wsbabogblog.blogspot.com. He can be reached at 206-464-1519 or wyld_governor@mac.com.