A list of comments received by the Washington Supreme Court's Bar Structure Work Group. The Work Group email inbox is no longer in use as the work has been completed.
Comments submitted by Jean Cotton
I believe that the mandatory bar should consist of the following only: 1. Licensing (application for and administration of exam; reciprocity; relicensing; CLE requirements/accounting) 2. Discipline 3. Ethics hotline/opinion (I am wary of recommending this due to in my experience and education it is completely worthless).
I believe everything else: sections; appeals; legislative work; access to justice; minority justice; foundation; magazine; social media etc. should be completely separate non-mandatory group. I should not be forced to spend money on an appeal that advocates against my fellow attorney; I should not be forced to spend my money on what another attorney believes is a "worthy cause" that does not have to do with licensing or discipline. Twice I challenged the Keller deduction and won — the WSBA acted politically with my money.
Unfortunately, after the WSBA acted illegally and I challenged the action and won, the very next year the WSBA did the same thing. Another recent example was the Board's resolution denouncing an act of white-supremacy violence that occurred in another state. While I wholly agree with the denouncement, it is a violation of my right to free speech by requiring me to fund this declaration.
Furthermore, I believe that the WSBA's budget is out of control. The rent on the building it occupies, the seemingly unfettered expenditure on things that have absolutely nothing to do with me, my fellow attorneys, my practice, or my community. It is a meglomachine that must be reigned in. If I had to pay $100 for licensing, discipline & ethics services a year, I guarantee you that the remainder of the funds I set aside for bar dues would go directly to serving the under-served in my community.
I have yet to find an attorney in my long and varied practice in Washington State that has one good thing to say about the bar association and the "services" it supposedly provides. Literally, I've heard "they hate us". That is how we feel we are treated.
Rea L Culwell
Walla Wall, Washington
My suggestion would be to cut all services except for licensing and discipline. I really don’t understand what exactly has happened to the Bar, but secrecy is never good. I think that reducing back to the absolute core responsibilities is the best approach.
My recommendation is that the WSBA should be disbanded and just a licensing function retained as needed. The notion of a bar association (the non-licensing part) should be voluntary for the purposes of member education and practice development. For example, I’m a member of the PTAB Bar Association that provides me with a wealth of educational resources for attorneys, like me, who practice before the PTAB (Patent Trial and Appeals Board). The rest of the WSBA has only interfered with my practice, not helped it. An example is the mandatory malpractice insurance requirement being railroaded through the WSBA Board while ignoring comments from attorneys like me who have indicated that the private malpractice insurance industry does not have policies for my practice (only for patent prosecution practices which is significantly different in terms of malpractice risk). Therefore, this new “requirement” for a license is an impossibility for me. For this reason alone, the WSBA should be disbanded.
I am an associate attorney in my firm, so my comments reflect my own views, not those of the firm. It seems that ongoing federal court cases will provide much clearer direction on WSBA’s proper structure, but in the meantime in my opinion we should have an organization that is the least burdensome for members while ensuring the public is protected by competent lawyers. The current continuing legal education requirements seem sensible in terms of numbers of credit hours and types of education required of lawyers. The reporting and compliance structure for continuing education, however, should be better streamlined to become more automatic and less costly, as it now seems to pose unnecessary hurdles.
My biggest complaint with WSBA in recent years is the high cost the organization imposed on members. The most vivid example is the enormous amount of money the association set aside merely for its moving its offices several years ago. To me, that demonstrated the organization was enormously wasteful with its members’ money and completely undermined its argument that membership fees needed to stay where they were. The ongoing dispute among current association governors as well as the terminated executive director shows the organization is so dysfunctional now that my inclination is to ask the Supreme Court to dissolve it and start over with the basics: provide the regulation needed to protect the public while minimizing everything else the association does. The public needs to have confidence that lawyers are competent to protect individuals’ and entities’ legal rights. That should be mandatory. The rest can probably be achieved by a voluntary organization that members want to join because of its good work and reasonable cost.
Matthew C. Crane
I support dis-integrating the bar and separating licensing and bar functions.
In my opinion, I believe the WSBA has become too “Seattle-centric.” Much of the WSBA’s agenda has moved from licensing and discipline to promoting social-agendas. While considered noble by many, others who disagree with or do not support the WSBA’s political and social opinions are forced to fund and support it with their dues. There is no alternative other than to pay dues and continue to disagree with the WSBA’s politics.
The WSBA would continue to serve an important function. It would also be able/required to assess its position and either adjust to meet the needs of all members, or it could continue to advocate for certain issues. But at least attorneys would have the ability to join and support it, or would be able to simply practice law without being forced to pay for policies and positions they disagree with. Attorneys with focused practice areas could join groups (what are now sections) to focus on things related to their practices rather than things that are largely irrelevant to them.
Accordingly, I support separating he WSBA from licensing and discipline functions.
I am writing to plead that the Structures Work Group do take up the issue of how to deal with allegations of harassment. It was with dismay that I heard in response to a work group member’s question regarding covering “other structure issues at WSBA… such as procedures on how to deal with harassment allegations,” that the chief responded that it was not a part of the scope of the group. Part of the issue that led to staff speaking up and asking for clear and ethical procedures for dealing with allegations of harassment and has created the work environment (under investigation as potentially hostile) is the dysfunction and bad behavior of this current board. The bad behavior and dysfunction of this board are indicative of how the current structure of the WSBA, the Board of Governors in particular, is not a reasonable or workable format to best fulfill the mission of the bar and jeopardizes the viability of the organization.
It is the very nature of the current structure of this board that has led to a governor who has been accused, investigated, and found to have “more likely than not” committed the acts (Barron Investigation Report, 2018, pg. 6), not only remaining on the board with no sanctions, but being promoted into a position of even greater power as treasurer. With the Supreme Court mostly unwilling to counter any actions taken by the BOG, this entity has no oversight and no accountability. Maintaining a similar organizational structure would mean that staff leadership would be unable to protect employees from harassment of members of the board. How is this a workable, ethical structure? It would allow the members of the board to engage in self-protectionism instead of behaving accountably. It sets up a structure which opens the door to potential conflicts of interest, power hoarding, back-door dealing, vote counting, self-protectionist, and unethical behavior which seems to have been in my opinion, and would continue to be, unchecked and unabated.
I do understand that the charter is worded to make clear what is to be covered, but I did want to remind the workgroup that in the letter dated Sept. 21, 2018 where the Chief first notes that the court will undertake a review of the structure of the bar, it also noted the poor treatment of the governors of each other, the Executive Director, and the employees. I assumed this meant that as a part of reconsidering the structure of the bar, also under consideration would be the structure of the board and its relationship to the organization, its leadership, and its employees.
It may be that consideration of how WSBA and any relevant leadership body should handle claims of harassment is more reasonably done when discussing recommendations around implementation of the work group’s recommendations (once approved by the court). Creating policies and procedures is a key part of setting up the structure of any organization and given the current situation, harassment and retaliation policies will need to be particularly clear, strong, and enforceable. I offer these comments in my personal capacity and not in my capacity as a WSBA employee.
Robin Nussbaum, PhD
We represent Washington Attorneys with Disabilities Association (WADA). We are a minority bar association representing attorneys and law students with disabilities in the state of Washington. WADA’s mission is to promote the meaningful inclusion of people with disabilities throughout the legal profession; to eliminate the barriers to inclusion in the legal profession experienced by people with disabilities; and to promote the careers and professional development of WADA’s membership through mentorship, networking, alliances, and cultivation of a strong and vibrant community. Our organization has concerns about the potential restructuring of the WSBA and its effects on diversity, inclusion, and accessibility.
In recent years, the WSBA has demonstrated its commitment to diversity and inclusion. Most notable, the WSBA has staff dedicated to upholding this commitment. Diversity staff members have helped to stabilize our relationship with the WSBA. For example, having the administrative support of a dedicated Diversity and Inclusion Specialist has enabled collaborations with other minority bar associations. With WSBA support, we have been able to have an annual event providing education about diversity, promoting understanding, and fighting discrimination.
As you are aware, reasonable accommodations and accessibility are required under the law. Bar programs and activities, physical and electronic, must comply with the law; they must be accessible. In large part, the WSBA has provided and added accessibility to our events. In addition to offering a venue, the WSBA contributes audiovisual equipment and support along with online services, which are essential for providing accommodations and accessibility to many members who would otherwise be excluded from events. The WSBA receives complaints and finds solutions to the issues that arise. There is still work that needs to be done in this area, but it helps to have dedicated funding and accountability for these needs.
Washington attorneys with disabilities represent at least 21% of the bar. The actual percentage of attorneys with disabilities may be higher as this percentage only reflects attorneys who have self-disclosed that they have disability. Furthermore, Washington attorneys with disabilities represent a protected class. Attorneys with disabilities face some of the highest intensity of career obstacles and discrimination. These attorneys also report the second highest frequency of obstacles and barriers to advancement according to WSBA's 2012 membership survey.
Our organization does not push for a particular structure for the bar, but we contend that any future version of the Bar must include the needs of the disability community to ensure that the legal profession is both accessible and equitable. Whatever is decided, our organization would want the formalized commitment to diversity, inclusion and accessibility to continue through staffing and other administrative support.
We respectfully request updates about this work Group’s progress and the continued opportunity to comment on the direction this work Group takes.
It is not appropriate to allow non-lawyer employees of the WSBA like Robin Nussbaum (or anyone else for that matter) to speak at your meetings regarding matters which are the subject of ongoing litigation. Pres. Bill Pickett allowed complaining employees to speak regarding ongoing litigation at the March 7th governors' meeting; and I believe that was also inappropriate. And why?
It destroys any concept of neutrality regarding matters under litigation on the part of the WSBA president, on the part of the Executive Director, and on the part of the members of Structures Work Group.
I find it hard to believe that the State Supreme Court would allow such comments to be made with litigation still pending. Chief Justice Fairhurst has already responded to the group of complainers in her March 1st letter.
Maybe this group of complaining employees thinks that the squeaky wheel gets the grease. But in this case, it is time to be silent and let the Chief Justice handle the matter in the normal course.
The Government Lawyers Bar Association is encouraged by the diverse group of people on the Bar Structure Work Group. However, we ask that you consider adding a government attorney to the Work Group. There is private practice, Tribal, and nonprofit representation, but no local or state government attorney representative. We believe the addition of a government attorney; especially an executive branch government representative, will be helpful to the Work Group and beneficial to ensure government attorneys are considered in any Bar structure analysis moving forward.
There are four (4) reasons why we think this is important: (1) the WSBA engages in executive branch functions such as licensing and regulation of a profession. Government attorneys are specially suited to address how the WSBA and the Court can address, and possibly improve, this function moving forward. (2) Every issue the Work Group will look at touches on what we do as government attorneys. For example, a question for the Work Group was: how does the funding mechanism work regarding appropriated v non-appropriated accounts. Government attorneys understand this issue and how to navigate it likely better than any other group in the Bar. Additionally, every day we work with, and represent, big and small government agencies on their risk management for public records, public meetings, administrative cases, and other legal areas in a government attorneys practice area. (3) Historically, we government attorneys have not been considered, or have been an afterthought, when the BOG/WSBA makes decisions. The most recent examples of this are the mandatory malpractice insurance discussion, fee increases, and updates to the WSBA's pro bono policies. Neither of the original recommendations sought input from government attorneys at the beginning of the process. We feel this trend will continue if government attorneys are not given a voice from the beginning. (4) Lastly, we believe the WSBA is in its current legal predicament because of fundamental misunderstandings of the PRA, OPMA, legislative process, and other governmental functions. Government attorneys understand the nature of these issues and how to look at it from the perspective of an agency or organization. We fear that any new structure will be subject to challenge and potential failure if there isn’t a government attorney representative able to understand these complex issues involved to assist the WSBA to protect itself in the future.
We hope you will consider adding a government attorney to the Work Group and would be honored to recommend candidates, if possible. Due to the timing of the first few Work Group meetings, we have been unable to be present for meetings so far. However, we hope to send a representative to all future meetings so that we can help with the process and lend our expertise, where needed.
Thank you for your consideration and we feel very fortunate to have a chance to provide input to you at this early stage of the process.
The Board of Directors
Government Lawyers Bar Association of Washington
Comments submitted by Thomas Mengert
I have been busy on a case and have not had time to focus on the future structure of the WSBA as I did with the issue of mandatory malpractice insurance.
But I was struck by the so-easy-to-discern answer to the current WSBA structure when I read this paragraph from an ABA article: In terms of the general membership, Phelps believes that many Arizona lawyers don’t realize that the bar’s primary purpose is to protect the public—something that was recently given increased emphasis in the bar’s mission statement, by order of the state Supreme Court. When he goes out to talk to members and clarifies the public purpose of the bar, many are a little surprised “and some are a lot surprised” that the bar isn’t a trade association that exists primarily for their benefit.
So what was the so-easy-to-discern answer?
Well, if the bar association's primary purpose is to protect the public and the bar itself is not a professional association of attorneys, then the Public should be paying for the operation of bar associations. We members should not bear the full brunt of the cost of operation.
If our bar association is subject to the plenary power of the State Supreme Court, then I say it truly is a governmental agency, and there is no doubt that the Public SHOULD be paying for its operation through taxes. Attorneys should be freed from mandatory membership and mandatory dues.
- As an attorney, I personally find no value whatsoever in the dues I am forced to pay to belong to the WSBA.
- I do not like to see how the bar president ignores his authority under the Bylaws acting as if he is a Governor instead of a chairman, especially how he ignores Roberts Rules of Order and ignores those Governors who attempt to get him to follow RRO.
- I do not like seeing the political bent in bar publications with no one taking charge to stop it. The personal political or religious beliefs of non-lawyer WSBA employees who write articles which the WSBA publishes are at the top of the list.
- I do not like to see how unhappy non-lawyer employees of the WSBA are able to co-op the Bylaws to get their way--removing a specific Governor as treasurer and their attempts to get the same Governor removed as a governor.
- I do not like the run-away budget of the WSBA, nor the huge budget increase forced upon us without a vote and which quashed our referendum process under the Bylaws two years ago.
- I do not like the way changes were "edicted" by the State Supreme Court in its 2/21/2018 letter without Governor or member input.
- I do not like the current bar complaint process which encourages frivolous complaints. Returning cases to the judicial arena would at least allow attorneys falsely accused to obtain attorney fees for all the hours it takes to defend their honor. Prevailing party attorney fees should apply. The AG sponsors workshops for non-profits; it could sponsor workshops regarding bar complaints too if the bar association were truly a government entity.
- I dislike that Sections cost me money to join when I already pay bar dues. The fine work Sections do with regard to making laws better and providing handbooks would be funded by tax dollars if the bar association were truly a governmental agency. Or Sections could operate independently on a voluntary membership basis-- I would pay to join a Section if I didn't have to pay WSBA dues.
- CLEs should be totally voluntary (and wouldn't that throw a curve ball to those in the overpriced niche market of providing CLEs).
- I dislike the "pat yourself on the back" awards of the WSBA.
- But most of all, based on my recent personal experience, I dislike the way access to justice and pro bono legal aid for the poor and disabled are like "color of title" to real property--these programs appear on their face to be a good programs but fail those with the greatest need.
Of course, a voluntary bar association won't solve my last bullet point, but having such programs as part of the bar association as a governmental agency funded by tax dollars would. If such programs are truly value-added and essential needs, and I think they are, then government funding is appropriate.
Two paragraphs below the one I quoted above is this statement: " . . . many lawyers are no longer acculturated to the idea that bar membership is an obligation that comes with working in a noble profession."
I believe I work in a noble profession and not because of my membership in the WSBA.
I take seriously the oath I took when I was admitted to the bar.
The essence of that oath is all I need to proceed in the profession I discovered late in life but love very much.
Respectfully and truthfully yours,
Inez Petersen, WSBA #46213
Has the Structures Work Group considered this lawsuit as yet? "Texas attorneys sue over diversity"
Please allow the attached law review article to serve as my public comment on the future of the WSBA.
553 S. Commercial St. #505
Manchester, N.H. 03101
I believe you are at a decision point in your process.
If you read Keller, Harris v Quinn and Janus, you can see a route forward. Justice Alito authored the majority opinion in both Harris and Janus. In Harris, he goes out of his way to talk about Keller and how that decision is not inconsistent with what he is saying in Harris. Then in Janus, he does not mention Keller, even though Justice Kagan’s dissent invites that discussion.
Keller teaches us that WSBA’s expenditures from mandatory fees must necessarily or reasonably be incurred for the purpose of regulating the legal profession or improving the quality of legal services. Compelled association is justified by the state’s interest in regulating the legal profession and improving the quality of legal services. But, there is no compelling state interest in political or ideological activities of the state bar.
Harris teaches that state action to require payment of fees or membership must serve a compelling state interest that cannot be achieved through means significantly less restrictive of associational freedom. And it emphasizes the difficulty in distinguishing between permissible expenses that may be embodied in a required fee as opposed to expenses associated with political or ideological activities. Harris goes on to proclaim that it is not inconsistent with Keller, in that the state has a compelling interest in regulating the legal profession and improving the quality of legal services, and a strong interest in allocating to the members of the Bar rather than the general public the expense of insuring that attorneys adhere to ethical practices.
Janus finds it impossible to draw the line between permissible mandatory activities of the union and political or ideological activities. But, if a member affirmatively consents to paying the entire fee (which supports in part political or ideological activities), the member waives his or her first amendment rights of disassociation.
I thus suggest that your path forward is as follows:
- The task force should determine what bar activities are free of ideological or political element and are required to regulate the profession, improve the quality of legal services and support ethical practice. I would use the dashboard of activities put together by staff for that discussion. I think the general takeaway will be that section activities are outside the mandatory area, as they inherently involve political advocacy regarding legislation, a very critical and important function, but necessarily political. Some other activities will fall outside the mandatory area. Diversity, equity and inclusion and access to justice can remain in the mandatory area, but may require some revisions to GR 12. Those revision efforts should look to the California legislation and the Texas legislation for possible drafting points, as well as the material from the ABA.
- Either the task force or another rules workgroup should undertake revisions to GR 12 for submission to the BOG and then to the Court.
- The WSBA should be directed to engage an outside public accounting firm with strong expertise in cost accounting and cost segregation to analyze and calculate the Keller deduction, based on the task force determination of mandatory versus political or ideological activities. Bar staff has done a great job of developing our Keller deduction, but we need third party expertise to determine the methodology and result going forward, given that we will have to defend the methodology and result in court. That is, we are going to be sued and will have to defend our Keller deduction and its calculation, which will necessitate persuasive expert testimony, which we will have through the public accounting firm. We probably need to update that study regularly, and this process may need to be outlined in GR 12, so that it is a Court directive, finding and policy.
- The task force should decide what to recommend on opt in versus opt out. Opt in is the safer choice. But, we are dealing with lawyers here. They get a dues or fee notice each year. That notice can display the accurate Keller amount, and the attorney can just check the box to opt out. I think this may pass exacting scrutiny, given that all the information is right there and the individual is deemed to be knowledgeable.
We thus may be able to hold together WSBA and satisfy the applicable jurisprudence. And we avoid the very difficult task of bifurcation of the organization, which involves many contractual obligations, a remaining eight year term on our lease, and 150 employees.
There is some urgency to this for a practical reason beyond threat of suit. WSBA staff is in some turmoil over the question of whether they will have jobs in another year, i.e. will WSBA be blown up. We need to show the staff that we are on a path that does not look threatening to their jobs, and we need to do that soon, as we are losing some key folks already over this and are having a challenging time recruiting for key positions with this cloud hanging over us. If you adopt the above course of action or some variant of it, our executive director then has the ammunition to quell most staff concerns.
Thank you for taking the time to consider this approach.
PJ Grabicki, WSBA Board Governor, District 5
Please find attached an article I wrote for the American Bar Association’s The Professional Lawyer publication in 2002 – 17 years ago. I submit that the current tribulations of the WSBA support the premise and thesis of my article. I submit that the guild structure of the WSBA should be replaced by a state regulatory agency responsible for the admission, competence (continuing education), and discipline of Washington lawyers and other authorized legal practitioners. Licensees interested in associating based on interest are free to voluntarily join as many other groups as they may desire.
George A. Riemer
Attorney at Law
Sun City West, Arizona
Former WSBA member (1975-2018)
The Washington State Bar Association (WSBA) is seeking member input for reformation of the WSBA in light of Janus v. American Federation of State, County and Municipal Employees Council 31, 138 S. Ct. 2448 (2018). We suggest "Setting the Captives Free." This means no more mandatory WSBA.
In particular we suggest the following:
- Lawyers who want to remain members of the WSBA, let them stay. Nothing changes for them.
- Lawyers who want to leave the WSBA, let them leave. They can resign from the WSBA but retain their license to practice law. Discipline for lawyers who choose to leave the WSBA could be accomplished in one of two ways:
- The non-WSBA lawyers would be subject to tort and contract law and could be sued by disgruntled clients or others who have standing. The Rules of Professional Conduct (RPCs) would not apply to them; or
- The non-WSBA lawyers would be subject to tort and contract law and could be sued by disgruntled clients or others who have standing. But the RPCs would apply to them and the plaintiff would be allowed to bring RPC claims directly to superior court. As a necessary corollary, superior court judges would be given subject matter jurisdiction over RPC claims.
Appeals for non-WSBA lawyers would be through the normal process to the Court of Appeals and the state Supreme Court. In the spirit of liberation as exemplified in Janus, CLE credits for non-WSBA lawyers would not be required. Of course, non-WSBA lawyers would still be free to take CLE classes and then advertise to potential clients that they do so. And clients would be free to hire either a WSBA lawyer or a non-WSBA lawyer.
The state of Washington should be in the vanguard of the movement to "Set the Captives Free."
WSBA # 17058
WSBA # 17434
While I am a member/partner in my firm, the views expressed here are mine alone and are not made on behalf of my firm, any of its employees or any other members/partners.
I’ve practiced in two states, MD and WA. When I practiced in MD, the Court of Appeals (equivalent of Washington’s Supreme Court) handled admissions, discipline and the client protection fund. The Maryland Bar Association was a voluntary association. Having first practiced in WA under the unified bar system, Maryland’s bifurcated system was a foreign concept initially; however, it was seamless. My annual fees (paid to the Court) were roughly $130/year during all the years in which I maintained and active MD license (I went on inactive status in 2014). While I do not recall the exact amount I paid in dues each year for the MD Bar Association, I do not recall the fees being much at all. The MD Bar Assoc. handled the various member sections, issued courthouse ID badges, partnered with the local and specialty bar associations, hosted CLE’s, provided an ethics hotline, had a role in legislation, provided lawyer referral services and information for the public, provided a committee for fee dispute resolution and a host of other functions for attorneys and the public.
I do not profess to know or understand all of the issues within the WSBA, but in my opinion and after having experienced a bifurcated bar in MD, the WA bar should be divided. I believe that the Court can and should handle the licensing, discipline and client protection fund aspects of governing the attorneys and that the rest should be left up to a voluntary bar association. I also think that the Court should oversee/manage LLLTs completely separately from attorneys and that none of the dues paid by attorneys (to the Court) should be used to subsidize that program.
My impression of the WSBA over the past few years is that it is not (and maybe hasn’t been for quite some time) an association focused on regulating and benefiting its attorney members but instead has become increasingly focused on politics and implementing the agendas of a few people within the executive level of the WSBA. Because of this, attorneys should have the option of whether or not they wish to be a part of that organization and bifurcating the bar provides for this to happen.
Jennifer A. Forquer
Partner, Integrative Family Law
Thank you for including the ABA article on "Lessons Learned from N. Carolina Dental" in the materials for the June 26 meeting of the Structure Work Group. After reading this weekend's additional materials from Work Group members, and reflecting on the Chief Justice's comments about some observers considering antitrust attacks on the WSBA, I believe there may be a need for additional Work Group information on antitrust issues.
These Comments explain and apply in more detail and from a different perspective the antitrust-related legal issues for the WSBA and other bar associations stemming from the N. Carolina Dental decision.
In brief, N. Carolina Dental did not add new requirements for the WSBA; instead, it applied the long-settled antitrust exemption principles set out in the bar association cases (Goldfarb, Hoover v. Ronwin) to other state regulatory boards. There is, therefore, no need for antitrust-related structural changes in the WSBA, and the Work Group may decide to place these proposals in the Chief Justice's "no change" bucket.
This information may buttress the position already set out for the antitrust concerns by Work Group members in the prior meeting.
Barnaby Zall, WSBA # 50976
Friday Harbor, Washington
My personal view is that Keller will survive Janus more or less intact, and that ultimately the regulatory interests identified in Keller and Lathrop will be affirmed as compelling enough to justify compulsory bar membership in basically its present form. I expect there will be a period of uncertainty, and perhaps some modest expansion in the types of bar activities found to be to be beyond the scope of the asserted regulatory interest. But I read Janus as somewhat limited, in that it’s rejecting the specific “free rider/labor peace” interests that the Court had previously accepted in Abood. But Janus does not purport to address or diminish the interests asserted in other mandatory-dues contexts (indeed, Janus’precursor, Harris v. Quinn, specifically notes that the interests asserted in the public-sector union context are distinguishable from the bar regulatory interests at issue in Keller).
In short, I think the legal analysis in the first four paragraphs of PJ Grabicki’s comment to the committee is correct. I also find the analysis in the Cleveland State Law Review article submitted to the committee to be unpersuasive, particularly in it attempts to suggest that individual grievances about bar budgets, leadership, etc. are somehow of constitutional significance. They aren’t. Janus didn’t turn on whether individual union members might be unhappy with particular decisions of their union. The relevant constitutional issue is whether the entity’s function serves a sufficient interest to justify compelled membership.
You had asked me if I had any insight into a “framework” the committee might use to evaluate whether particular bar activities are sufficient to survive First Amendment scrutiny post-Janus. That’s a pretty fact-specific question that I am not sure I can answer as a general matter. I will say that, as in any constitutional challenge, a regulatory program is more likely to survive scrutiny if the governing agency can articulate, with specificity and factual support, what interest is being served; how the program furthers that interest; and why less-restrictive alternatives would not satisfy the asserted interest. As noted above, I think the interests identified in Keller, Harris, and Lathrop — regulating the legal profession, improving the quality of legal services, assuring the ethical practice of law — remain viable. Bar programs that can be shown, with record evidence, to directly advance those interests are more likely to survive scrutiny.
Eric M. Stahl
To me, the greatest flaw in the governance structure of the WSBA is the three and out rule regarding governors. That is, a governor, whether appointed or elected, serves one three year term and thereafter cannot serve as a governor again. The result is that historical knowledge and experience is flushed away forever.
Frankly, a newly elected or appointed governor spends at least the first year just learning, and his or her effectiveness is at its maximum, due to the learning curve, in the third year of service. Then, that effectiveness is lost forever.
I would propose that governors can run for a second three year term, and that former governors can run again for office after they have been off the board for three years. If they are then reelected, I would permit them to run again for a second three year term. I might term limit a governor after twelve years of service.
As to appointed governors, such as representing young lawyers or underrepresented segments, I would consider making those elective offices rather than appointive. The voters would be restricted to the group intended to have representation, i.e. young lawyers or underrepresented segments. We would have to define underrepresented segments, of course.
Further, I believe it is a mistake in governance to allow any WSBA member to run for the office of president elect. I would restrict that by making it a qualification that the individual has first served on the BOG for a minimum of three years, although those three years could be in the past.
I think we are ignoring a great pool of talent with our current exclusionary rules. Also, the constant turnover of the board with the three year limit creates a lack of consistency and a board with a significant number of members who are on a steep learning curve, and a few who are at their most effective due to years of service.
Finally, the current exclusionary rule results in the unintended consequence of aggregating power to staff. It’s not that staff is reaching for this power, but rather that that is an unintended result.
We went through this same process at the Legal Foundation of Washington some years ago, and came to the result I am advocating above. If you speak to our executive director, Caitlin Davis, I think you will find that she finds that the revisions have strengthened the organization, its governance and its effectiveness.
Thank you for considering the above views.
PJ Grabicki, WSBA Board Governor, District 5
I am the liaison to the Board of Governors from the Family Law Section Executive Committee. This committee has been active for many years in its own section work as well as providing information, input and analysis on a variety of topics involving the Board of Governors and central WSBA positions and policies. We are committed to continuing this long history of work into the future and, in particular, in providing information and analysis to the legislature on relevant family law bills, in ensuring that the WSBA engages in programs that reasonably assist people going through dissolutions, and helping lawyers stay current on topics relevant to family law so that they can provide meaningful assistance to their family law clients. Because of our section’s keen interest in maintaining the strength of our section (and others), we have been following the Structure Work Group.
Since my section could not review this comment ahead of time, I speak for myself today. I have been impressed by the level of involvement in this process by the participants and, in particular, the work of Justice Fairhurst and Dory Nicpon. The speakers have been informative and the materials helpful in understanding the serious issues being considered. I appreciate meetings that start and end on time and the free (but respectful) exchange of views.
I have reviewed the motions that may be proposed at tomorrow’s meeting. I offer the following thoughts.
A-C by Eileen Farley
Ms. Farley is very well-spoken and has clearly worked hard within the structure work group. My primary concern with all three of her proposed motions involve the use of outside “experts” at this time.
- Motion A. With regard to Motion A (Keller deduction), it seems that the Keller analysis that has been done for years within the WSBA has been adequate. It has largely withstood challenge through arbitrations conducted by able appointed arbitrators. An outside analysis could have two results: it could uphold the internal Keller analysis or decide it is flawed. If it is the former, WSBA would have spent a lot of money and staff time with no gain. If it is the latter, it would provide adverse information that would only be used against the WSBA in future litigation. It also seems that the analysis standard that is suggested is more stringent than GR 12 or Keller. Any further limits should only be determined by a court after litigation rather than undertaken voluntarily to the detriment of the organization, its members and the public.
- Motion B. (Janus) My comments here are similar to those made regarding Motion A. In addition, it is simply premature to guess what the ultimate Fleck decision will be and make organizational changes based on that guess. Our focus should be on maintaining the strength of the organization and validating its programs and work, not reducing its programs and work unless required to do so. We should continue our internal analysis to assess any first Amendment issues but not overreact.
- Motion C. Again, the purpose of the Structure Work Group was to analyze the WSBA programs under the relevant case law. I see no reason to spend money on outside experts at this time. This is particularly true since there is no question that the WSBA has the authority to regulate attorneys. None of the speakers/articles raised concerns that the Washington Supreme Court could not regulate/discipline lawyers using the bar association to implement that discipline/regulation. It seems that the WSBA has made appropriate structural changes to solve these kind of previously raised anti-trust issues.
D-F by Dan Clark
- Motion D. I understand the concept that a term limit of three years on a board/committee can result in good people having to leave the board after only three years when they finally were up-to-speed on the variety of programs/budget issues, etc. that WSBA governance involves. In another day and time, I might well agree to bylaw changes on these issues. I cannot recommend that now. At a recent meeting someone commented that a number of the complaints about WSBA that were raised by members did not involve issues would be solved by the structure work group. WSBA has had BOG and personnel issues before and they will have them again, but this year has been particularly difficult and expensive. Many of the problems stem from one current BOG member’s actions or reactions and his pending (as far as I know) claim or lawsuit. These issues have been widely publicized in the news. In my opinion, any effort to extend his term will only cause more bad press, more organizational strife and more staff dissension. While the organization may well benefit if the terms of other BOG members are extended, the downside at this current moment seems greater than that benefit.
It would be easier to support a bylaw change to allow people to run again for a three year term after leaving the BOG for awhile. But, opening the door regarding by-law changes in the current environment will distract the organization from other substantive work that is more important.
- Motion E. Most of this motion seems more appropriately directed to the BOG. I think paragraph 5 is properly considered by the Structure Work Group.
- Motion F. I am concerned that the attacks by isolated individuals are being given too much power over the WSBA. Also, entire programs are being considered political speech when they actually fulfill valid and non-political purposes.
This motion seems to be a hybrid of bifurcation. Bifurcation was rejected at the last meeting by the Structure Work Group but, more importantly, this motion provided for an additional fee for members not a split of the existing fee. This increase in fees would likely be strongly opposed and would likely lead to the loss of valid programs.
I am also concerned that the figures quoted for the programs named do not seem accurate. The figures are high because the overhead is divided across all cost centers. The sections’ figure is the one of most concern to me (and the Family Law Section). The vast majority of our work is done by volunteers and not staff. We do not meet in the offices downtown. We use relatively little staff time overall and have little to no say over the staff time allocated to sections. Having said that, we do get excellent help from the CLE staff that do help with those efforts. But, as I said, we have little say over other costs that are attributed to our section. For example, we have a staff liaison assigned to us who now travels to all of our meetings and attends them, even if they are out of Seattle. We never had this before and never asked for it. While she is very nice and helpful, we did not ask for this expense to be incurred and don’t need an in-person presence from staff at all of our meetings. This staff change, like others, results from staff policies put in place under the former Executive Director. Over time, as these and other decisions are reviewed, I believe that these numbers will go down.
his motion will, I believe put the existence of sections in jeopardy even though it is considered by many to be the most important work done by the WSBA.
Thank you for the opportunity to comment on these possible motions. Again, these are my comments and have not been voted upon by the Family Law Section since the motions were not made available prior to our last FLEC meeting.
This addresses reorganization of the WSBA in light of First Amendment (Janus) and antitrust (North Carolina State Board of Dental Examiners) concerns.
The WSBA has a long history of using mandatory dues to advocate positions with which many disagree. Years ago, it opposed I-200. In the most recent bar journal, it asserts the political and ideological position of a "racialized and gender-stereotyped society..." (KJ Williams, page 5) and suggests support for quotas by implying that medical school deans, law partners or CFOs should be proportional to all licensees, ignoring experience, qualifications and personal preference. As shown by letters to the bar journal, these are controversial positions that many members do not share.
Janus quoted with approval Thomas Jefferson's statement that "to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhor[s] is sinful and tyrannical." Slip op at 9. The association's use of dues to advocate opinions with which many disagree conflicts with Janus.
The de minimus Keller deduction allowed by the association suffers from the same issues as the agency fees rejected in Janus. There is the same vagueness problem, slip op at 40, as to what should and not be allowed, and the same daunting and expensive task, id., if one seeks to challenge the deduction. Since the agency fee model on which the limited Keller deduction was based has been overturned, the solution is to make membership voluntary (except for discipline, admission and MCLE, with dues determined through an open and transparent process.)
Some have suggested that Harris v. Quinn, 573 U.S. 616 (2014) indicates that mandatory bar dues survive Janus. In fact, Harris indicates that mandatory dues are illegal, except for regulatory functions like legal ethics and discipline.
Addressing a union analogy to integrated bars, Harris quoted at some length Justice Douglas' dissent in Lathrop v. Donohue, 367 U.S. 820 (1961), in which he concluded that the "First Amendment did not permit compulsory membership in an integrated bar." Slip op at 11 (italics in Harris). "Once we approve this measure ... we sanction a device where men and women in almost any profession or calling can be at least partially regimented behind causes which they oppose...." Harris, slip op at 11-12, quoting 367 U.S. at 884. "[W]e practically give carte blanche to ... put at least professional people into goose-stepping brigades. Those brigades are not compatible with the First Amendment." Harris, slip op at 11 - 12, quoting 367 U.S. at 884-885. This parallels Janus.
Consistent with Justice Douglas, Harris characterized Keller v. State Bar of Cal, 496 U.S. 1 (1990) as restricting mandatory dues to regulatory functions: legal ethics and discipline. It held that members of this bar could not be required to pay any portion of bar dues used for political or ideological purposes "but that they could be required to pay the portion of the dues used for activities connected with supporting ethical codes and disciplining bar members." Slip op at 37-38 (emphasis added.) States have a strong interest in allocating to the members of the bar rather than the general public "the expense of ensuring that attorneys adhere to ethical practices." Slip op at 38. Restricting mandatory dues to "ethical codes and disciplining members..." could essentially turn much of the WSBA into a voluntary association, consistent with Janus.
Antitrust/ North Carolina State Board of Dental Examiners
The WSBA requires all members to purchase through their dues its favored search service, Casemaker. Members, even those with another service, cannot opt out of Casemaker and reduce their dues, but are required to purchase a product they do not need or want. Some members, having been forced to buy Casemaker, may not buy a competing service. This restrains trade and may constitute an improper tying of search services to bar membership. Personal liability may be possible. See U.S. Department of Justice memorandum "Individual Accountability for Corporate Wrongdoing," (September. 9, 2015), https://www.justice.gov/archives/dag/file/769036/download.
Mandatory Casemaker does not qualify for state action immunity. The Legislature has not adopted a public policy requiring lawyers to purchase Casemaker or any search service. Even if the state Supreme Court reviewed Casemaker at some point, its usual ex parte review of WSBA actions, without notice or hearing, would not satisfy the requirements of active supervision and pointed re-examination, North Carolina, slip op at 13, required for state action immunity. As noted in the FTC Staff Guidance On Active Supervision of State Regulatory Boards Controlled by Market Participants, Oct. 2015, factors relevant to active supervision include whether the supervising body "collected data, conducted public hearings, invited and received public comments, investigated market conditions, conducted studies and reviewed documentary evidence." FTC Guidance at 10. That has not occurred.
Voluntary Bar Associations
The work group's website contains little material on voluntary bar associations. I am also admitted in Pennsylvania, and when practicing there was a member of the Pennsylvania Bar Association. Pennsylvania is a voluntary state. Perhaps some knowledge of its voluntary bar would assist the work group.
Admission, discipline and MCLE are handled by committees appointed by the Supreme Court. The bar association is a private voluntary organization. It maintains practice sections, interacts with the legislature and courts, provides CLEs, lawyer assistance programs, supports the public interest and performs many of the same non-regulatory responsibilities as the WSBA. Since these services made it almost indispensable, it attracted the overwhelming majority of in-state lawyers as members. (Those practicing out of state often join the association where the practice.) Due to its large and voluntary in-state membership, it had substantial influence. For a structure that provides the extensive membership of a mandatory bar without its legal and practical downsides, Pennsylvania may be a model to consider.
Thank you for consideration of these comments.
WSBA # 27134
Open Letter to WSBA Structures Workgroup
I am an attorney that has represented several clients in Sherman Anti-Trust, Rico and Civil Rights lawsuits in the Ninth Circuit Court of Appeals that have been filed against the WSBA.
This work group is typical of the nonsense the WSBA has been involved in for the last few years.
First, you publicly announce on your web site, inviting the public to show up at the work group for their input. Subsequently we are forced to listen to Judge Fairhurst first give us a presentation by an "expert" who lectures us on how the Sherman Anti-Trust Act supposedly applies to the WSBA. We listen for another hour while the work group discusses among themselves what they think they should be doing, which is basically waiting around until the United States Supreme Court decides how to apply Janus, No. 16-1466, 585 US___ to bar associations. At no time was the public invited for input. Some of us finally gave up and left in disgust.
Why am I not surprised by this subterfuge? First, Judge Fairhurst is part of the old guard, a former WSBA president, on the Washington State Supreme Court that appears more than willing to sacrifice the United States Constitution so that the WSBA\Snohomish County RICO enterprise can weaponize the disciplinary process, for the purpose of targeting minorities, sole practitioners, and its political enemies for discipline instead of carrying out its delegated mission of disciplining unethical attorneys. In the process, the Washington State Supreme Court has allowed large firms, government attorneys, and friends of the RICO enterprise to violate the Rules of Professional Conduct with impunity with acts of extortion, bribery, forgery and honest services fraud.
For those of you who doubt this, check out our RICO statement in the latest Anne Block suit where we document hundreds of predicate acts conducted by ODC and others over a ten year period. If you are truly interested on how the Sherman Anti- Trust Act applies to the WSBA, you should read our briefing on the subject in Anne Block's latest case, which was filed over her illegal disbarment in Washington. For those of you not familiar with the case, Anne Block was disbarred, not for misconduct as an attorney, but because the WSBA/Snohomish County RICO enterprise was displeased with her articles in the Gold Bar Reporter, for which she was named third best reporter in Washington State by the Open Government Coalition for exposing corruption in government. Unethical judges like Fairhurst were all to willing to throw the First Amendment into the trash can in order to disbar her.
Which brings me to the point of this letter and my attempted input into this farce.
This work group makes no sense. Why should it be spending months and maybe years supposedly brainstorming while the United States Supreme Court decides how Janus applies? If Janus applies, as we advocate, then the entire WSBA must be made voluntary. There can be no bifurcating of the WSBA's functions, because, as noted in Janus, all of its functions are political, including its so-called disciplinary system. If Janus does not apply, then its back to business as usual, with Washington attorneys being forced to subsidize a RICO enterprise in order to practice law.
The real reason for this charade, can be seen simply by looking at the September 18, 2018 letter that established the group. Since a reform group had apparently gained a majority on the Board of Governors, the Washington State Supreme Court suddenly became "concerned" about Janus and recent antitrust developments concerning organizations like the WSBA. They ordered the WSBA not to engage in any reforms at all and do nothing about it's RICO controlled disciplinary system, while they "studied" these developments.
If the Washington State Supreme Court gave one whit about Janus, they would have advocated allowing me to run for Washington Supreme Court last year. Instead, they wanted the ruling of a Thurston County Superior Court Judge upheld, who ordered me off the ballot because I was not a member of the Washington State Bar Association.
If they were concerned at all about North Carolina's Dental Examiner's decision which indicates bar associations may be subject to Sherman Anti-Trust Act, they would not have spent years advocating that the WSBA was immune from such suits, when the issue was raised several times in the ninth circuit following North Carolina Dental Examiners.
At first, the reform group appeared unfazed by the threats from the Washington State Supreme Court. They held an emergency meeting to gain control over their own litigations, to end the Sherman Anti-Trust activity and corruption which was causing them endless litigation. They sacked the head of ODC, Paula Littlewood, who had been instrumental organizing its RICO activities.
But then the Washington State legislature started getting involved. The house voted 96-1 to get rid of the WSBA altogether by repealing the Washington State Bar Act. The Senate threatened to do similarly. Suddenly, the reform group sprang into action. They admitted to the legislature there had been problems in the past. They claimed they were going to reform. They pleaded for mercy. The Senate relented, kicking the can down the road, basically letting the Washington State Supreme Court make the call.
There is a lesson to be learned here. If the WSBA becomes subject to Janus, as it invariably will, then it has to look at the situation of the public unions. Sure, you are going to take some hits. Those who took the Keller deduction will opt out. In the case of the unions they lost a several million as a result. However, the vast majority of regular union members stayed in, less than 1/10 of 1% dropped out. That's because most members want to belong to unions because there is strength in numbers. You will be in a similar situation. You are not engaged in collective bargaining, so you will have change your practices so that you truly "champion justice." You have to reform in a way where members are not disciplined by the color of their skin, but by the content of their character. You will have to stop disciplining attorneys like Anne Block because they do not conform to your brand of political correctness. You will have to punish unethical activity no matter where it occurs even it means sanctioning popular government figures. You will have to stop your current practice of going after the low hanging fruit by picking on sole practitioners while letting the friends of the Snohomish County RICO enterprise skate.
In short, you will have to root out corruption. If you start to do so I will probably do as in the immortal words of Peter Townsend:
I'll tip my hat to the new constitution
Take a bow for the new revolution
Smile and grin at the change all around
Pick up my guitar and play
Just like yesterday
Then I'll get on my knees and pray
We don't get fooled again
Don't get fooled again, no no
Meet the new boss
Same as the old boss
John “Zamboni” Scannell
Comments submitted by Daryl A. Rodrigues, chair of Council on Public Defense
I believe, from my experience dealing with the WSBA since 2016 the organization has become so corrupted they refuse to preform the basic duty assigned them. That being to require a minimum standard of competence and integrity from its members.
In spring of 2016 while a law student I reported a professor I was working under who:
- Failed to properly research a case and applicable law to the clients detriment.
- Ignored the fact a client was using our services to fraudulently obtain a divorce decree.
- Instructed a client to destroy evidence of a crime.
As a result of reporting this members of the Gonzaga law school administration lied about maters to the bar association, who then denied me sitting for the bar exam. My grievance against the professor was ignored.
I resubmitted the grievance in fall of 2016 at which point it was dismissed automatically (as are all grievances) unless I took further steps. I took those steps. The professor responded, essentially saying “I was a former student with a grudge and she didn’t do any of these things.”
Upon receipt of her response the grievance was dismissed. I provided evidence clearly contradicting the statements made by the professor to the WSBA. The response from the WSBA was that the mater was closed and would not be reopened.
In February of 2018 the Whitman County public defender refused to work towards my objectives in representation. After I got the mater dropped, which he insisted we wait until trial to do, he challenged me to a fist fight. The WSBA saw this as a personal disagreement between my lawyer and myself. Thus dismissing the grievance
During litigation against Gonzaga University, the school’s lawyers requested a 26(c) protective order over documents which had been in my possession (some created by me) for over 2 years. These documents contained evidence that a Gonzaga Law School Professor, in her position at University Legal Assistance (a separate Legal entity from the law school) committed malpractice. Anyone familiar with the discovery process knows this was an abuse of the discovery process. In this instance the University didn’t have standing to claim any right to the documents. Regardless, Judge Dixon Of Adams County granted the motion. He then went on to grant the University’s second motion for contempt. In finding contempt Dixon ordered punitive measures (2 days in Spokane county jail) ignoring due process required by statute.
The University’s attorney Kelly Konkright has gone on to defend these actions to the appeals court.
All of this is considered “with in the acceptable limits of advocacy” according to the WSBA. They have conceded to reopen the mater should judicial impropriety be found. In other words, only if another organization such as the appeals court of the judicial committee find the actions improper, will the WSBA will consider investigating the mater.
Washington State lawyers do not need a pseudo-governmental organization to protect them from the repercussions of abusing the legal process. They already receive immunity from civil or criminal prosecution for inappropriate acts in judicial proceedings. Judges give lawyers an unprecedented amount of deference over Pro Se litigants, which is frequently abused. If any other profession acted the way the WSBA does, it would be considered a violation of anti-trust laws.
The Washington State Bar Association should be dismantled as they have become captured by their industry and engage in and protect the exact behavior they were established to prevent and stop.
I personally believe the Minority Report establishes cogent reasons compelling a transition to a voluntary bar. Thank you.
Marc T. Christianson