History of the Washington State Bar Association

by Robert D. Welden, WSBA General Counsel

The Washington Bar Association was formed in January 1888, in the last year of the Washington Territory. In those days, all lawyers who had cases set for argument before the Supreme Court were required to be present at the beginning of the Court term in January. Sometimes, lawyers were required to wait for days or weeks for their cases to be called on the calendar.

It was in this setting that a group of lawyers met in the Supreme Court chambers in Olympia, January 19, 1888, to form the Washington Bar Association. (The name was changed to the Washington State Bar Association in 1890). The association originally consisted of 35 lawyers, and membership cost $5 per year. By 1913, there were about 600 members of the Bar. At that time, it was a purely voluntary organization and did not include all lawyers admitted to practice.

By 1930, as more lawyers were admitted to practice, it was proposed that the Bar Association have a paid executive secretary and a paid representative in Olympia when the Legislature was in session, that it have an official publication, and that it be incorporated. George McCush of Bellingham was appointed chairperson of the Incorporation Committee. That committee reported back with a draft of a Bar Association Act to be proposed to the Legislature. Because the Washington Constitution prohibits creation of corporations by special act, the committee proposed that the Bar Association be created as an agency of the state. The proposed act would create "a complete integrated (i.e., mandatory membership) Bar which is officially organized, self-governed and all inclusive." It proposed an annual license fee of $5.

This proposal was widely debated over the next few years. One issue was whether the bar should be established directly by legislation (the "State Bar Act"), indirectly by legislation authorizing integration by Supreme Court rule (the "Short Bar Bill") or simply by court rule. Ultimately, the drafting was taken up by Seattle attorney Alfred J. Schweppe, former Dean of the University of Washington School of Law. He argued forcefully and successfully for legislative establishment of the Bar. In 1933 the State Bar Act (Ch. 2.48 RCW) was enacted.

During this period, Al Schweppe also agreed to serve, briefly, as the first executive secretary of the Association, and operated the State Bar out of his law office in the Colman Building in Seattle. He soon hired Clydene Morris to serve as executive secretary. The State Bar offices moved to the Dexter Horton Building in 1933, where they shared space with the Seattle Bar Association. In 1947, the combined offices were moved to street-level offices in the Morrison Hotel across the street from the King County Courthouse.

Ms. Morris served as executive secretary until 1955 when Alice O'Leary Rawls became executive secretary (the position was changed to executive director in 1962). Ms. Rawls was a graduate of the University of Washington Law School, and had been an assistant attorney general, deputy prosecuting attorney, and director of the King County Family Court.

In 1966, the WSBA office moved to the College Club Building. In 1971, G. Edward Friar was hired as assistant executive director, and in 1972 he succeeded to the position of executive director. In 1981, he was succeeded by John Michalik, a lawyer from Minnesota who had been employed as the WSBA's first director of continuing legal education. In 1986, the WSBA office moved to the Westin Building.

Dennis Harwick, the executive director of the Idaho State Bar, became WSBA executive director in 1990. During Mr. Harwick's tenure, the WSBA office moved again to the Fourth and Blanchard Building. In 1998, Mr. Harwick was succeeded by Jan Michels, the former King County Superior Court Clerk. In March 2007, Paula Littlewood, former WSBA deputy executive director, was named executive director.

Mandatory Bar Associations

The terms mandatory, integrated and unified bars are used interchangeably to refer to bar organizations in which membership is required to practice law, and which combine within the organization the admission, regulation and disciplinary functions of the bar. The constitutionality of mandatory bars has been repeatedly upheld by the United States Supreme Court. Lathrop v. Donohue, 367 U.S. 820, 81 S. Ct. 1826, 6 L. Ed. 2d 1191 (1961); Keller v. State Bar of California, 496 U.S. 1, 110 S. Ct. 2228, 110 L. Ed. 2d 1 (1990).

This includes the requirement that lawyers pay a license fee to the State Bar. It has been held that it is not a violation of a member's First Amendment rights to use mandatory fees to fund activities germane to the regulation of the legal profession or improving the quality of legal services available to the people of the state.

"Keller Deduction"

In Keller v. State Bar of California, the U.S. Supreme Court held that a state bar may not, over a member's objection, spend mandatory license fees to fund activities that are:

1. for activities that are of a political or ideological coloration, and

2. that are not necessarily or reasonably related to:

a. regulating the legal profession; or

b. improving the quality of legal services available to the public.

This gives rise to the so-called Keller deduction. A member who objects to use of his or her funds for purposes which do not meet the Keller test may deduct that portion from his or her annual fee. This chiefly concerns lobbying activities by the State Bar that do not fall within the Keller exception. Essentially, any lobbying activities are political or ideological in nature. Thus, the issue for state bars is whether lobbying activities are related to regulation of the legal profession or improving the quality of legal services to the public. The Washington State Bar Association's political activities are limited by GR 12(c) and Arts. I(C) and V(G) of the WSBA Bylaws.

Following procedures approved in Popejoy v. New Mexico Board of Bar Commissioners, 831 F. Supp. 814 (USDC NM 1993) and 847 F.Supp. 155 (USDC NM 1994), the executive director, in consultation with the director of legislative affairs and general counsel, determines those activities which are "nonchargeable" to objecting members based on the most recent audit report. Notice is given to members at the time they are sent their annual license fee notice. A member may ask for arbitration of the amount of fee which may be deducted if the member disagrees with the amount of the deduction.

Washington State Bar Association

Although the WSBA was organized as a mandatory bar by legislative adoption of the State Bar Act (RCW 2.48) which describes the WSBA as "an agency of the state," the WSBA is not a state agency. Although the Supreme Court has never specifically held that the State Bar Act is an unconstitutional infringement on the separation of powers between the legislative and judicial branches of state government, it has found several of its provisions to be contrary to the inherent power of the Supreme Court to regulate the judiciary and bar. The two most notable cases are Graham v. State Bar Association, 86 Wn.2d 624, 548 P.2d 310 (1976), and WSBA v. State of Washington, 125 Wn.2d 901, 890 P.2d 1047 (1995). In the Graham case, which concerned an attempt by the state auditor to conduct a post-audit of the WSBA treasury and accounts, the Supreme Court held that despite the language in RCW 2.48, the WSBA is not a state agency. The Court held that:

. . . the source of the court's power to admit, enroll, disbar, and discipline is exclusively in the Supreme Court as one of its inherent powers. . . . It was not necessary, therefore, for the legislature to act to accomplish the purposes achieved by the 1933 legislation [RCW 2.48]. The power to accomplish the integration of the bar, its supervision and regulation is found in this court, not the legislature.

In WSBA v. Washington, which concerned a statute passed by the legislature which would have made the WSBA subject to collective bargaining, the Supreme Court held:

This court's control over Bar Association functions is not limited to admissions and discipline of lawyers. The control extends to ancillary administrative functions as well. . . . The ultimate power to regulate court-related functions, including the administration of the Bar Association, belongs exclusively to this court.

The Supreme Court has adopted General Rule (GR) 12, Washington State Bar Association: Purposes, which sets out the general purposes of the WSBA, and specifies authorized activities and activities which are not authorized. The language of GR 12 is incorporated into Article I of the WSBA Bylaws. The internal affairs of the WSBA, including its membership, governance, and operations, are established by the WSBA Bylaws.

 

Organization of the Bar

Governance

The WSBA is directed by a 14-member Board of Governors. The governors annually elect a president-elect. The president-elect is elected based on a periodic geographic schedule, with every other president-elect from King County, and the intervening years alternating between eastern Washington and western Washington other than King County. The president-elect succeeds to the presidency. In addition, the board annually elects one of its members as treasurer.

The board employs an executive director to carry out the purposes and functions of the Bar under the direction of the board. The executive director employs such staff as needed within the limits of the budget established annually by the board.

WSBA members may vote on any issue by referendum or resolution, under terms established by the WSBA Bylaws.

Regular meetings of the Board of Governors are conducted at times and locations set by the board. In addition, special meetings may be called by the president, the executive director, or five members of the Board of Governors. Under the WSBA Bylaws, all meetings are open meetings, except when the board meets in executive session for purposes established by the Bylaws.

The annual meeting of the WSBA occurs at a time and place set by the Board of Governors. Customarily, the annual meeting is in September.

The board may appoint standing committees, special committees, divisions, and task forces.

Organization

Pursuant to court rules and bylaws, the WSBA includes many subentities as part of the integrated and unified bar association. These are all part of the Washington State Bar Association and include:

i. Board of Bar Examiners: Established by Admission to Practice Rule (APR) 2(a)(1). The board prepares and conducts the bar examination which is given twice a year, usually in February and July. All recommendations for or against admission to the Bar are ultimately made by or on behalf of the Board of Governors. APR 2(a)(4). Members are appointed by the Board of Governors. The Committee has 90 members. Staff support: three full-time employees (admissions supervisor and two admissions assistants).

ii. Character and Fitness Board: Established by APR 3(c) and APR 21. It conducts investigations and hearings into character and fitness issues of applicants for admission to the Bar. Also conducts hearings into petitions for reinstatement after disbarment. Appeals are taken to the Disciplinary Board. Members, including 11 lawyers and three nonlawyers, are appointed by the Board of Governors. Staff support: WSBA general counsel.

iii. Law Clerk Board: Oversees enrollment and participation in Law Clerk Program, a four-year course of self study under the tutelage of a qualified lawyer or judge, which may qualify an enrollee to take the bar examination. Seven lawyer members are appointed by the Board of Governors. Staff support: special admissions coordinator.

iv. Disciplinary Board: Established by Rules for Enforcement of Lawyer Conduct (ELC) 2.3. Regulates discipline of the bar under the general supervision of the Board of Governors (The Board of Governors has no involvement in discipline process in individual cases). Nine lawyer members are appointed by the Board of Governors. Three nonlawyer members are appointed by the Supreme Court. Staff support: WSBA assistant general counsel and the clerk to the Disciplinary Board.

v. State Board of Continuing Legal Education (frequently referred to as the "MCLE Board"): Established by APR 11. Approves or accredits all CLE programs. Oversees member compliance with CLE requirements. Seven members (6 lawyers, one nonlawyer) nominated by the Board of Governors and appointed by the Supreme Court, which designates the chairperson. Staff support: licensing supervisor (executive secretary to the board) and two licensing assistants.

vi. Lawyers Assistance Program: Authorized by GR 12(b)(14) and APR 19(b). Provides assistance to WSBA members for alcohol, drug or emotional or mental problems. Steering Committee appointed by Board of Governors. Staff support: director of lawyer services, two clinical therapists, one addictions specialist, one coordinator.

vii: Lawyers Fund for Client Protection: Established by APR 15. The Board of Governors serves as trustees of the fund, and appoints a committee of 11 lawyers and two nonlawyers to administer the fund. Purpose is to compensate persons who have been the victims of dishonest taking of funds or property by lawyers in connection with the practice of law. Staff support: general counsel.

viii. Editorial Advisory Committee and Washington State Bar News: Editorial Advisory Committee and Bar News established pursuant to authority of GR 12(b)(15). EAB appointed by Board of Governors. The Editor is employed by Board of Governors in consultation with EAB. The Editor has sole authority over editorial content of Bar News, except that Board of Governors may direct that material it believes to be of value to WSBA members be published. Staff support: director of member and community relations, managing editor, advertising manager, communications specialist, administrative assistant.

ix. Judicial Recommendation Committee: Established pursuant to authority of GR 12(b)(16). Its purpose is to make recommendations to Board of Governors who may advise the governor on well-qualified candidates for appointment to Court of Appeals and Supreme Court. Members appointed by Board of Governors. Proceedings and recommendations are confidential. Staff support: bar leaders program manager.

x. Sections: Authorized by GR 12(b)(1) and established pursuant to WSBA Bylaws. Each section has own bylaws and purposes. Sections elect their own officers. Section bylaws and budget are approved by Board of Governors. Staff support: sections liaison and bar leaders coordinator.

xi. Young Lawyers Division: Authorized by GR 12(b)(1) and established pursuant to WSBA bylaws. Members include all WSBA members age 36 and under, or admitted to practice in any jurisdiction five years or less. Elect own officers. Bylaws and budget approved by Board of Governors. Publishes De Novo. Staff support: WYLD liaison and bar leaders coordinator.

xii. Committees: In addition to the above, there are standing committees authorized by GR 12(b)(1) and established pursuant to WSBA bylaws. Members are appointed by Board of Governors. Staff support: each committee has a staff liaison.

Related Organizations

i. Washington State Bar Foundation. Nonprofit corporation established to administer various charitable contributions and carry out other purposes as established by the Foundation articles and bylaws. The trustees are elected by the Board of Governors.

ii. Legal Foundation of Washington: Nonprofit corporation established by the Supreme Court to administer funds from IOLTA (interest on lawyers' trust accounts) program to fund delivery of legal services to low income people. Nine-member Board of Trustees, three of whom are appointed by Board of Governors.

iii: Access to Justice Board: Established by order of the Supreme Court. Purpose to coordinate access to justice activities in Washington. Members nominated by Board of Governors and appointed by Supreme Court. Board of Governors appoints the chairperson. Staff support: one justice programs manager, one access to justice liaison, one justice programs coordinator.

iv. Practice of Law Board: Established pursuant to GR 25. Thirteen members, not fewer than 4 of which are nonlawyers, appointed by the Supreme Court. Purpose is to investigate complaints of unauthorized practice of law and to make recommendations to the Supreme Court regarding the circumstances under which nonlawyers may be involved in the delivery of certain types of legal and law-related services. Staff support: general counsel and part-time investigator.

v. Limited Practice Officer Board: Established pursuant to APR 12. Nine members, not fewer than 4 of which must be WSBA members, appointed by the Supreme Court. Purpose is to administer and regulated the licensing of limited licensing of closing officers. Staff support: special admissions coordinator.

vi. WSBA-Sponsored Insurance Program. Broker of record is Marsh Affinity Group Services. Purpose is to guarantee availability of malpractice and health and disability insurance to WSBA members within sound underwriting practices.

vii. Bar-Pac: Established as a political action committee to provide financial support to legislative candidates and to support the WSBA legislative program. Completely independent from Board of Governors but reports periodically to board to promote its purposes.

viii. American Bar Association Delegates. The WSBA has seven delegates to the ABA elected by the Board of Governors. These are in addition to other delegates selected through other means. The state bar delegates report periodically to the Board of Governors.

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