MINUTES

Present: ATJ Board members Chair Michele Jones, Christine Crowell, Pete Dewell, Pam Feinstein, Scott Smith, Rich Kuhling, Dwight Williams, Hon. Rebecca Baker, Hon. Greg Tripp; ATJ Board committee chairs and members Barrie Althoff, Comm. Kim Prochnau, Pat McIntyre, Rebecca Mordini, Leonard Schroeter, Debi Perluss; Jim Bamberger; ATJ Board liaisons Hon. Janet Garrow (District/Municipal Court Judges Association), Zulema Hinojos-Fall (Board of Governors), Denise Patrick (Washington Women Lawyers); Guests Dick Manning (WSBA President-Elect), Michael Fitch and Ted Maloney (WSBA Legal Assistants Committee); Staff Joan Fairbanks, Sharlene Steele, Rebecca Elder, Leslie Johnson.

Minutes

The Minutes of the September 14, 2001 meeting were approved as written.

Proposed GR 27 – Family Law Facilitator Rule

Michele Jones provided a brief overview of the history of the need for, and development of, the proposed rule. The rule before the ATJ Board is the culmination of work by both the ATJ Board and the Board for Judicial Administration. The ATJ Board voted to formally adopt the proposed rule, which was submitted to Supreme Court to meet the October 15 GR 9 deadline. The BJA will formally consider adopting the rule at its November 30, 2001 meeting. Some concerns have been raised by court clerks, judges and others about local control and training with respect to the implementation of the rule. Judge Small and Judge Tripp will be representing the ATJ Board at the next BJA meeting where they will be discussed.

Update on Civil Equal Justice Funding Task Force and Legal Needs Study

Joan Fairbanks called the Board’s attention to the proposed order creating the Task Force that incorporates the ATJ Board’s suggested changes to the Supreme Court’s language. The proposed final order is still pending before the Supreme Court, and issues regarding staffing are still being negotiated with the Administrative Office of the Courts. She also updated the Board on the status of fundraising for the civil legal needs study, which will be administered by the Task Force: (1) “up to $50,000” from the BJA; (2) $10,000 from the Legal Services Corporation; (3) $15,000 from the DCTED (state Department of Community Trade and Economic Development). Requests are pending before at least three WSBA sections: Litigation, Indian Law and Administrative Law. A request also is pending before the state Department of Aging and Adult Services. Scott Smith has a request pending before the King County Bar Association and there may be a donation forthcoming from the Washington State Bar Association. Judge Tripp noted that it should be a priority to have at least $50,000 in non-BJA financial commitments by the November 30 BJA meeting. Scott Smith suggested that the ATJ Board coordinate closely with other groups appointing members to the Task Force to ensure that the participation by individuals with appropriate and complementary experience. The ATJ Board discussed the proposed cost of the study and whether it is sufficient, and also talked about appropriate responses to those who suggest that such a study may not be a good use of scarce resources.

Draft Guidelines on Inclusion, Diversity and Multi-Cultural Competence as a Justice Imperative

At the September 14 meeting, Ada Shen-Jaffe made a presentation about these draft guidelines. Pat McIntyre reported that the guidelines have been adopted by the Northwest Justice Project. He shared the experience of this process, including the fact that the NJP Board adopted the guidelines as a “starting point” in the process because of the complexity of the issues raised by the guidelines and a sense that as written they are inadequate and need to be fleshed out. Committees of the ATJ Board and other groups are considering the proposed guidelines and currently are making comments and suggestions. As an aside, Chris Crowell suggested that the ATJ Board Conference Planning Committee consider Dr. Leticia Nieto for the annual Community Partnership Award because of the contribution she has made in educating this community about these issues. The ATJ Board will convene a small committee (Ada Shen-Jaffe, Pat McIntyre, Scott Smith) to develop a formal resolution with proposed steps on implementation which in turn will be brought back to the ATJ Board after its committees and the Council on Public Legal Education have had a chance to consider it.

Re-Draft of ATJ Board Principles and Goals

One of the first tasks for the ATJ Board in 1995 was to develop its Statement of Principles and Goals. The ATJ Board discussed a slightly revised draft version prepared by Ada Shen-Jaffe. After a wide-ranging discussion about possible changes, the ATJ Board established a small working committee to bring a proposed re-draft to the ATJ Board for consideration at the November 30 meeting. Issues to be considered: Who is the audience? Is there too much “jargon?” Should there be a preamble? Can the points be reordered to prioritize the concepts? The Principles and Goals Committee will be chaired by Dwight Williams. Members are Judge Janet Garrow, Scott Smith, and Ada Shen-Jaffe.

Practice of Law Board

Scott Smith reported on the status of the development of the Practice of Law Board. Scott is the ATJ Board representative on the BOG’s Implementation Committee which is putting together a process to help the Supreme Court make its appointments to the Practice of Law Board. He called the Board’s attention to a letter he wrote to WSBA President Dale Carlisle recommending lay members for the BOG’s Implementation Committee, and a memo from WSBA General Counsel Bob Welden describing the work of the Committee. The Implementation Committee has to date put in place a deliberative process to encourage organizations to submit input to the Court. The deadline for submitting applications for the Board is mid-February 2002. Applications can be submitted either to the BOG or directly to the Supreme Court. By mid-November, materials will be posted on the WSBA web site and a letter will go out from Bob Welden to a proposed list of interested parties. Scott suggested that the ATJ Board review the three lists in the materials (the list put together by the Implementation Committee, the list of ATJ Board committee members, and the ATJ Conference proposed participant list) and add to them. The Implementation Committee will host a public hearing on December 17 to let the public know about the process. Dick Manning noted that labor organizations need to be added to the list. Scott will distribute the final letter to the ATJ Board and asked that members send a note with the memo to individuals and organizations they would like to see incuded. Pete suggested sending the notice to the EJC’s list.

Non-lawyer Members of ATJ Board and Committees

The new ATJ Board order provides that the Board can have up to two non-lawyers on the Board. The ATJ Board has been considering how to identify and recruit non-attorneys for future membership on the Board. The Executive Committee is charged with developing a plan to do this, and will set aside time for that in the next month.

Resolution Regarding the Events of September 11

The ATJ Board adopted a Resolution, which is attached to these Minutes, and which will be distributed widely to the following: the media through the PLE/ATJ Media Committee; the Board of Governors; the EJC for publication in its newsletter; BJA; the law schools; WSBA sections; King County Bar Bulletin; Judicial Associations; county and specialty bar associations; Attorney General; Judicial News. In the dissemination of the resolution, the ATJ Board will note the other organizations that have adopted similar resolutions: BJA, Gonzaga School of Law, Legal Foundation of Washington, LAW Fund.

Fifth Circuit Opinion in Washington Legal Foundation v. Texas Equal Access to Justice Foundation

This opinion was distributed with the ATJ Board materials. Dwight Williams provided a brief overview of the Texas case and the history of the litigation, which at this point does not affect any programs outside Texas. The Fifth Circuit held that IOLTA was a per se taking which requires just compensation; and that regardless of whether there is an out of pocket loss, plaintiffs are entitled to declaratory and injunction relief and do not have to demonstrate they have lost property. There will be a petition for an en banc review filed in the Texas case, which review is unlikely given the history of the litigation. The ABA Commission on IOLTA is prepared to provide amicus briefs if needed. Michele Jones noted that IOLTA is “business as usual” in Washington State and that we are awaiting the decision from the Ninth Circuit in Washington Legal Foundation v. Legal Foundation of Washington. The ATJ Board, represented by Jim Bamberger and Len Schroeter, agreed to work with the Legal Foundation of Washington and the national IOLTA community to explore strategies in the event of an unfavorable outcome.

Proposed Rule on Unbundled Legal Services

Barrie Althoff, Chair of the ATJ Board’s Unbundled Legal Services Committee, and Committee member Commissioner Kim Prochnau made a presentation on the new proposed rules on unbundled legal services. Barrie’s overview included the statement that the purpose of the rules is to legitimize something that is already happening, and to give lawyers less of an excuse for not undertaking these cases. “Unbundling” legal services is breaking a case down into segments, a practice which has been done for years, and which currently is permitted under RPC 1.2. The proposed rules make it much clearer that this practice is permissible and addresses the various issues that arise when a case is “unbundled.” Commissioner Prochnau serves on the ABA Committee on the Delivery of Legal Services, which has agreed to send a letter in support of these rules to the Washington State Supreme Court. The commentary to the proposed rules includes ABA comments to the RPCs, which has the effect of establishing a legislative history for the rules. The rules also were written to conform closely to ABA model rules, which has the advantage of establishing national uniformity should other states adopt similar rules. Commissioner Prochnau thanked the following for their comments and assistance: Debi Perluss, the King County Bar’s Unbundled Legal Services Committee, the Northwest Women’s Law Center, and individual lawyers in private practice who do unbundled legal services. This committee will be making a presentation to the BOG at its November meeting. The ATJ Board voted to be a sponsor of the rules; Chris Crowell will be a spokesperson. Judge Garrow will provide the ATJ Board with draft rules for the district courts. Michele Jones thanked Barrie and Commission Prochnau for their excellent work.

Court Funding Crisis

Chris Crowell reported on a presentation made at the October BOG meeting regarding concerns about funding of the judicial system. The presentation was made by Judge Robert Harris, Superior Court Judges Association; Ralph Maimon, King County Bar Association President; Brian Gaines, Presiding Judge, King County Superior Court; and Roger Felice, WSTLA President. The report focused on proposed county cuts in the court system, including family law facilitators, mandatory arbitration, court reporters, and other services that are used predominantly by low and moderate income people. The request to the BOG was two-fold: stop the bleeding right now and establish a coalition to explore long term solutions. The ATJ Board had a wide-ranging discussion about the implications of this proposal, including potential competition with funding for civil legal services. The Board voted to write a letter to the four presenters at the BOG meeting advising them that the ATJ Board is very concerned about the problem of funding for the courts wants to be involved in any coalition that is formed to address it.

Updates

Justice Jam: Rebecca Mordini invited everyone to attend that evening’s annual Justice Jam. She also had t-shirts to sell and distributed/described LAW Fund’s Annual Report.

House Warming: Chris Crowell invited everyone to attend her house warming party on November 10.

Legally-speaking

The ATJ Board completed it meeting by watching 14 segments of Legally-speaking, a series produced by KING5 TV in cooperation with WSBA. Several ATJ Network members/organizations have been featured: Colleen Kinerk, Jan Eric Peterson, Michele Jones and Pat McIntyre.

*ACTION ITEMS*

Legal Needs Study (deadline: 11-29-01)

ATJ Board members will contact members of WSBA sections to encourage them to vote to donate money to support the legal needs study. In particular, the Litigation, Indian Law and Administrative Law Sections have this item on their agendas for November.

IDM Guidelines

The ATJ Board established a small committee (Ada Shen-Jaffe, Pat McIntyre, Scott Smith) to develop a formal resolution with proposed steps on implementation which in turn will be brought back to the ATJ Board after its committees and the Council on Public Legal Education have had a chance to consider it.

Principles & Goals (deadline: 11-30-01)

Dwight Williams will chair a committee to re-draft this document. Committee members are Judge Garrow, Ada Shen-Jaffe and Scott Smith.

Practice of Law Board (deadline: asap)

ATJ Board members will review the lists distributed at the meeting and send additions to Joan Fairbanks.

Scott Smith will forward to Board members the final letter from Bob Welden to Board members who can in turn forward it to individuals/organizations that may not have been contacted.

Non-lawyer ATJ Board members (deadline: asap)

The ATJ Board Executive Committee will develop a recruitment strategy to be considered by the Board.

9-11 Resolution

ATJ board staff will distribute the resolution as suggested.

IOLTA case

The ATJ Board, represented by Jim Bamberger and Len Schroeter, will work with the Legal Foundation of Washington and the national IOLTA community to explore strategies in the event of an unfavorable outcome.

Unbundled (completed)

Judge Garrow will provide the committee with proposed district court rules.

Court Funding

Michele Jones will write a letter to the four presenters at the BOG meeting advising them that the ATJ Board is very concerned about the problem of funding and want to be involved in any coalition that is formed to address it.

Respectfully submitted,

Joan Fairbanks, Justice Programs Manager