November 2002

The Board's Work

by Judith Berrett
Director of Member and Community Relations

The board approved two bylaw changes — both related to BOG elections. Feeling that the 20-signature requirement on governor petitions may, on occasion, be an impediment to running for the board, the governors voted to eliminate this requirement. The other change permits governors to vote by secret ballot when electing governors (governors elect the replacement when a vacancy on the board occurs).

The board interviewed 12 candidates for at-large governor to replace Dave Savage, who now serves as president-elect. After public-session interviews, comments and questions from governors and liaisons, and executive-session discussion and voting, President Dale Carlisle announced the election of Fawn Sharp as the new governor at large. Ms. Sharp serves as lead counsel for the Quinault Indian Nation.

Jerry Boyd, of the Court Rules and Procedures Committee, presented several rules for consideration. Following a fair amount of discussion by board members and liaisons, the board, acting against the recommendation of the Court Rules Committee, unanimously voted to recommend to the Supreme Court the adoption of CrR 4.2 and CrRALJ 4.2. These two proposed rules would standardize guilty-plea statements. The board also unanimously voted recommendation of proposed rule CrR 4.7, which would allow release of redacted discovery materials to defendants. There followed a discussion of proposed ER 412, concerning extending the inadmissibility of evidence of prior sexual conduct unless ruled relevant by a judge (essentially adopting Federal Rule of Evidence 412 as to civil cases). The proposal originated with the Civil Rights Committee. Michael Subit and Maria Fox, co-chairs of the Civil Rights Committee, and Gayle Barry, representing Washington Women Lawyers, spoke in favor of the proposed rule. The Court Rules Committee, however, did not recommend the change, stating that ER 403 grants relief through seeking a judicial ruling on the admissibility of this type of evidence. After noting the difficulty when faced with opposing recommendations from two committees, the board voted to submit the proposed rule to the Supreme Court.

Back on the board's agenda after 16 months was consideration of a change to RPC 1.8(e) that would allow humanitarian loans to clients under certain limited conditions. Eric Dickman, chair of the WSTLA Maritime Section, and John Merriam, a maritime practitioner, spoke about the desperate needs of some of their clients for funds to cover emergency living expenses. Mike Pontarolo, representing the RPC Committee, spoke about the committee's unanimous opposition to the change, stating that attorneys are permitted to give gifts to needy clients under the current rules, and that introducing a lawyer's financial interest into the attorney-client relationship would pose many ethical dilemmas. The board was sympathetic to the plight of clients in need, but was concerned that allowing lawyers to loan money to their clients would "open up a Pandora's box," and that lawyers' professionalism, ethics and integrity were potentially at stake, since loaning money to clients could possibly result in lawyers' "buying cases." The board also pointed out that there are services available that lawyers could recommend to their clients in need, and many other ways to help clients apart from loaning money. A motion recommending a change to RPC 1.8(e) to allow humanitarian loans to clients was defeated by a vote of two in favor, 10 opposed, and one abstaining.

WSBA Director of Legislative Affairs Gail Stone alerted the board that the 2003 Legislature is likely to face a revenue shortfall of at least $2 billion as it writes a budget for the 2003-2005 biennium — an even greater shortfall than the $1.2-plus billion last year. The WSBA's legislative priority continues to be funding for the courts and civil legal services. Later this fall, the Supreme Court's Task Force on Civil Equal Justice Funding will be making recommendations for future funding mechanisms.

Wilda Heard, vice-chair of the Lawyers' Fund for Client Protection Committee, presented the committee's annual report and recommendations. Last year, the board (who are the fund's trustees) and the Supreme Court approved increasing the maximum fund payment cap from $30,000 to $50,000 per application, and increasing the committee's authority to approve payments without trustee review from $3,000 to $10,000. When these changes were approved, the trustees asked that in one year the committee review the fiscal impact of these changes, as well as whether they created any inequities for applicants. The committee unanimously recommended that the current $50,000 per application cap and committee authority of $10,000 be continued, and the board unanimously approved permanent adoption of these limits.

Former WSBA President Jan Eric Peterson reported on the activities of the Proud to Be a Lawyer Task Force. Accomplishments include "Legally Speaking" on KING TV and Northwest Cable News; "You Have Rights: Lawyers Protect Them" radio and airport campaign; "Proud to Be a Lawyer" features on the WSBA Web site and in Bar News; development of the "Truths about Lawyers" pamphlet; and the local-hero program. All have become institutionalized. Upon Mr. Peterson's recommendation, the board voted to sunset the task force.