Substitute House Bill 1788
In 1933, the Legislature enacted the State Bar Act, which created the Washington State Bar Association to be governed by a board of governors charged with the executive functions and enforcement of many provisions of the act. ESHB 1788 repeals the majority of the State Bar Act, and endeavors to recognize the inherent plenary authority of the Washington Supreme Court to regulate certain functions of the law, including the practice of law and the administration of justice. The Washington State Bar Association, represented through its Board of Governors, is opposed to ESHB 1788 in belief that the bill goes too far in eliminating important statutes that currently serve the WSBA and its membership. The board’s full resolution reads: “Be it resolved that the WSBA Board of Governors is opposed to ESHB 1788 and any other attempt to amend or repeal the Bar Act until the Supreme Court Bar Structure Work Group has completed its work."
The WSBA will host the Court’s Bar Structure Work Group that will thoughtfully consider the future of the WSBA in light of important constitutional and antitrust challenges facing mandatory bar associations nationwide. That work group is scheduled to begin its work on March 28, 2019, and complete its analysis, at earliest, by July 2019. In light of this work group, the WSBA believes passage of ESHB 1788 is premature, and its implications are currently unknown. Because the WSBA believes it is important to consider all options as it and the Structure Work Group begin work to decide how the future of the bar will look, the WSBA has requested that ESHB 1788 not be advanced and that any legislation that would repeal or amend the State Bar Act be suspended until such time as the Structures Work Group can complete its work.
Frequently Asked Questions
Does ESHB 1788 reduce annual fees or affect the regulatory functions, including discipline, of the bar?
The WSBA does not believe that the legislation will result in lowering annual fees or affect the regulation of attorneys and disciplinary functions of the WSBA in any way.
Does ESHB 1788 “dissolve the bar”?
Opponents of ESHB 1788 assert that an unintended consequence of the legislation is the dissolution of the bar. ESHB 1788 recodifies RCW 2.48.010 (establishing the Washington State Bar Association) and repeals RCW 2.48.030 (Board of governors) RCW 2.48.035 (Board of governors – Membership – Effect of creation of new congressional districts or boundaries); RCW 2.48.040 (State bar governed by board of governors); RCW 2.48.050 (Powers of governors); RCW 2.48.060 (Admission and disbarment); RCW 2.48.160 (Suspension for nonpayment of fees); RCW 2.48.166 (Admission to or suspension from practice – Noncompliance with support order – Rules); RCW 2.48.170 (Only active members may practice law); RCW 2.48.190 (Qualifications on admission to practice); RCW 2.48.210 (Oath on admission); RCW 2.48.220 (Grounds of disbarment or suspension) and RCW 2.48.230 (Code of ethics).
Proponents of the legislation believe that by amending and re-codifying RCW 2.48.010, the entity itself is preserved and dissolution is avoided. A striking amendment has been introduced in the Senate.
Here is the full text of each of the bills currently under consideration:
What is WSBA’s stance?
As mentioned above, the WSBA Board of Governors voted to oppose ESHB 1788, while continually monitoring the amendment language and working on its own amendment language.
A group of four governors presented testimony regarding ESHB 1788 (ahead of the striking language being considered in the Senate) to the Senate Law & Justice Committee on March 19. Read the written testimony submitted by WSBA governors.
Concerns raised in that testimony include:
- ESHB 1788 is premature, its implications are currently unknown, and its unintended consequences are potentially substantial, irreversible and likely to lead to federal litigation.
- The Court has established a Bar Structure Work Group to thoughtfully consider the future of the WSBA in light of important constitutional and antitrust challenges facing bar associations nationwide. Once that process is complete, the WSBA and the Court should cooperate to propose whatever legislation might be needed, thoughtfully tailored to the specific recommendations of the Structure Work Group.
- Two likely options to be considered by the Structure Work Group would not involve eliminating the existing entity, but rather causing the WSBA to (i) avoid all political speech and political activity or (ii) bifurcate into a voluntary bar association under the current entity and a mandatory set of licensing and disciplinary functions under the delegated authority of the Court.
- The primary and potentially most dangerous component of the proposed legislation is its transfer of all WSBA functions, assets and obligations to the Court, and the potential financial and legal consequences resulting therefrom.
- It could be difficult or even impossible in future sessions to affirmatively pass legislation to “fix” problems not explored or anticipated in passing ESHB 1788.
- Many unknown ramifications remain about the bar’s business functions, even with the amendment language.
- The transfer of all WSBA functions, assets, and obligations to the Court could cause potential financial and legal consequences.
- Is the Court’s plenary authority sufficient to close the gaps created by eliminating and purporting to recreate the legal status of WSBA?
- Are there implications for “gifting” fees, which would disrupt service program such as the Washington Leadership Institute, Moderate Means program, and Call to Duty program?
- Is this possibly an “unconstitutional taking” of private property, given that WSBA is a statutorily authorized, wholly member-supported association?
- Does these issues open the door to potential federal causes of action?
- Will the Court assume—or can the Court assume—current contracts and commitment such as the WSBA lease agreement, the sections’ reserve balance of $1.2 million that should remain property of the sections and pending litigation matters?
Has the Supreme Court taken action on this bill?
The Washington Supreme Court voted on March 14 to take no position on the bill and to indicate that the Justices affirmatively agree on the effective date in the proposed striking amendment.
What is the History of ESHB 1788?
WSBA’s Outreach and Legislative Affairs Manager, Board Legislative Committee (BLC), and the Board of Governors have been closely tracking this bill.
Similar bills to repeal the State Bar Act have been introduced in the past. The BLC, comprising 10 of 15 board members, was alerted to the original bill when it seemed the momentum of this bill was not on a fast track. The Outreach and Legislative Affairs Manager kept in close touch with Representative Laurie Jinkins, Chair of the House Civil Rights & Judiciary Committee, and learned that, unlike in past years, a substitute version of the bill was likely to move out of committee. The BLC received the substitute-bill language on Feb. 19, when it first became available. The BLC then received weekly updates on both the original and substitute bills, and BLC members actively discussed the bill (notes are available online and shared with the full board).
Because this bill is complex and nuanced, the board was diligent in researching and understanding both the language and political landscape before taking official action. Under its bylaws, WSBA is unable to take legislative stances until the BLC and/or entire board completes a GR 12.1 evaluation (WSBA is limited to taking stances only on bills that relate to the practice of law and/or administration of justice) and a majority of board members vote in favor of a position. For “major and novel legislative issues,” the BLC can elect to refer issues to the full board for their consideration, and the BLC decided on Feb. 22 to do so for ESHB 1788. The board also wanted to hear from its membership and the Washington Supreme Court at its annual board-Court meeting on March 8. Ultimately, the full board voted on March 12 to take a position after a robust public meeting in which the board heard from many of its members from around the state about all the factors at play. Since then, the board has been actively participating in the bill’s process and communicating with members.
Does WSBA have a legislative presence?
Yes, WSBA has a full-time Outreach and Legislative Affairs Manager, Sanjay Walvekar, who is WSBA’s lobbyist. As of mid-March, WSBA’s Legislative Affairs team has referred 1,092 bills (out of approximately 2,800 bills introduced) to sections and other relevant WSBA entities, based on their subject-area expertise and interest. These entities have worked with the Outreach and Legislative Affairs Manager to engage in the legislative process including supporting Senate Bill 5003, brought forward by the Business Law Section, which is set for action in the House Committee on Civil Rights & Judiciary. WSBA entities have also provided comment on several bills, including Senate Bill 5079 (supported by the Civil Rights Law Section), Senate Bill 5399 (supported by the Family Law Section), and Senate Bill 5083 (supported by the Litigation Section).
More information is available on the WSBA Legislative Affairs homepage.