[WSBAPT] Report from Gov. Higginson on Sept Bd of Governors Meeting

[Michael Safren]

Hello Fellow Listservs:

Below please find a report issued by Governor Higginson on the September
Board of Governors Meeting.

Kind regards,
Michael Safren

Dear Colleagues,



I am the governor for District 2 to the WSBA when I was appointed a few
months ago to then-current governor Rajeev Majumdar’s position as a result
of his election as president-elect of the WSBA.   I attended my first board
meeting in person on September 27-28, 2018 and wanted to provide you with
my report as to the highlights of that meeting.  Please note that my report
represents my viewpoint on various issues and topics and is not the
position of the WSBA.  I think it is very important that the members of
District 2 have information so that we can engage in a dialogue and fully
examine all of the issues that affect our legal community.



MANDATORY MALPRACTICE INSURANCE TASKFORCE



No action was taken and no report was made regarding the work of the
Mandatory Malpractice Insurance Taskforce.  Many of you have strong
feelings/concerns about a requirement for mandatory insurance, particularly
the need for exemptions for attorneys who have retired from active practice
but still provide pro bono or reduced fee services.  Exemptions are
suggested as necessary to prevent access to justice issues.  Attached is a
memo from attorney Barnaby Zall which articulately details the concerns,
which I share with you with his permission.  The Law Office Management
Assistance Program (LOMAP) (now called the Practice Management Assistance
Program) was an excellent support for new attorneys and more experienced
practitioners as well in how to set up and manage their practices with
services brought to the member’s office as well as the LOMAP & Ethics
Traveling Seminar (The Roadshow) that reached out to members across the
state. Prevention should be the first response, and compensation limited
only to those few and rare cases that can't be prevented.  By curtailing
LOMAP, the WSBA greatly reduced what was arguably the most cost-effective
form of malpractice prevention. The alleged need for mandatory malpractice
insurance may be a “self-inflicted injury” on the part of the WSBA which
could well be remedied by expanding the Practice Management Assistance
Program program.



I am opposed to mandatory malpractice insurance at this time but would
appreciate hearing from you.  Please mail, email or call me with your
comments.  If you wish, you may also send comments to the Mandatory
Malpractice Task Force at insurancetaskforce at wsba.org but they seem to have
already determined that it is a good idea, so if this is to be stopped, it
will have to be at the board level.   The task force’s final report is due
in January 2019 and it is possible that this will be presented at the
January

Board of Governors meeting.



CIVIL RULE CHANGES



The civil rule changes recommended by the Civil Litigation Rules Drafting
Taskforce were tabled in order to seek member input.  The changes being
recommended are sweeping and have not been sent to our members for review
and comment.  I also do not understand why the taskforce did not report to
the Court Rules and Procedures Committee and then that committee report to
the board.  This seems to have created some confusion among members who
reasonably presumed that changes to court rules would flow through the
standing Court Rules and Procedures Committee.  At any rate, some of the
proposed changes are discussed in detail by attorney Bryan Page in his
September 19, 2018 letter to me, and he has kindly agreed that I may
include it with my report.  I strongly suggest that you read this as you
will be interested, and perhaps surprised, at some of the proposals.  I
understand that the WSBA staff intends to send out the proposed court rules
to the members for comment, but if you would like to review them, they
start on page 162 of the materials for the September board meeting; here’s
the link:
https://www.wsba.org/docs/default-source/about-wsba/governance/bog-meeting-materials-2017-2018/board-of-governors-public-session-materials-sept.-27-28-018.pdf?sfvrsn=ac6501f1_13.
(This will take you to the materials and it will take some time to download
them in order to view the proposed court rules.)



WSBA BUDGET



The annual budget for the WSBA of $20,263,940 was passed by the board.  The
budget is in the red by the sum of $41,000.  The majority of the board felt
that this was a satisfactory budget and it was approved, noting that there
are reserves of $3.5 million so the shortfall, if one ends up existing
during the fiscal year, can be taken from the reserve.  The LLLT program
continues to operate at a loss of $240,000.  The legislative budget is only
$5,000 which seems too low considering that one of the stated goals of our
association under GR 12.2(b)(17) is to: “Maintain a legislative presence to
inform the members of new and proposed laws and to inform public officials
about the organization’s positions and concerns.”  However, I do not have
information about why and how this budget item is so small.  I hope to
learn more on this topic.



SUPREME COURT LETTER



You will recall from a prior email from me that the governors received an
unexpected letter from Chief Justice Mary Fairhurst on September 21, 2018
which suspended the Board’s authority to consider pending bylaw amendments
and invoked the court’s plenary power to regulate the activities of the
WSBA.  A copy of that letter was provided to you previously and another
copy is attached for ease of reference.  Justice Fairhurst attended the
entire two days of the board meeting and addressed her letter in more
detail at the meeting.  Justice Fairhurst said that the Court was concerned
about recent U.S. Supreme Court rulings such as *Janus*.  (*Janus* says
unions can no longer force non-members to pay "agency fees" because such
fees violate workers’ free-speech rights, by forcing them to give money to
organizations whose views they may not support.  The expressed concern of
the Executive Director of the WSBA and Supreme Court is that this case has
possible anti-trust implications with an integrated bar association, as we
have now).   She said that the Court has made no decisions other than what
is in the letter, and the letter was unanimously approved by the justices.
The process was initially discussed with Bar staff and now with the
committee that is being formed.   The Court is at the stage of engaging
with no pre-conceptions as to the outcome as to the structure of the Bar
Association.  The Court will be moving deliberatively ahead and Justice
Fairhurst personally feels that due to the various lawsuits in other
states, time is of the essence but process is also important.



She said that nothing the Court has done impacts the State Bar Act, and the
court and the Bar Act have lived together for many years.  However, the
Court may at some point contact the legislature.  She indicated that the
Bar Act must be read in connection with the WSBA bylaws which recognize the
Court’s plenary authority, as well as case law.



With regard to the directive by the Court that the Board may not address
any bylaw changes, Justice Fairhurst indicated in answer to a question that
the Board does many things than address bylaws, and the Board may continue
to function in other areas, it just may not change bylaws.



BOARD COMMITTEE TO CONSIDER RESTRUCTURING.



An ad hoc committee was formed to consider whether and how to restructure
(bifurcate) the WSBA.  The current members are WSBA Governors Paul Swegle,
Dan Clark, Dan Bridges, Kyle Sciuchetti, Michael Cherry, and P.J.
Grabicki.  Other members are WSBA Pres. Bill Pickett, WSBA Executive
Director Paula Littlewood, and WSBA General Counsel Julie Shankland.  Also
on the committee are the heads of various departments in the WSBA,
attorneys Hugh Spitzer, Geoff Revelle, and Ken Masters.  The group has met
at least twice since the late September board meeting.  Following is an
excerpt from Governor Paul Swegle’s report dated October 2, 2018, which I
present here as he is a member of this new committee and therefore has
direct knowledge of their discussions, and some perspectives about process
that I appreciate.



                                                 *Gov. Swegle’s report*:



*“We spent 2 hours reviewing and discussing a matrix of WSBA activities and
program areas, debating essentially which functions should be viewed as
falling under the purview of a "Mandatory Bar" and those which would be
appropriate for a "Voluntary Bar."  A few important bullet points re this
process: *

*               Any restructuring and creation of a Voluntary Bar must be
done with the full input of the Members. *

   - *I need to review the video again, but I believe I heard Chief Justice
      Fairhurst say something to the effect that the Members would
have to decide
      what their Voluntary Bar looks like. I wholly endorse that view. *
      - *Also, the Restructuring Committee will reach out to Section
      Leaders soon as a key group of stakeholders. I believe the "Mandatory
      versus Voluntary Bar Activities Matrix" (my title) will be distributed
      broadly soon also, so I am not sharing the current draft, which is being
      fine-tuned after yesterday's meeting. I will share it with you
when I can. *
   - *In addition to questions of which functions go to a Mandatory Bar and
   which functions go to a Voluntary Bar, Members should have a say in which
   functions may fall by the wayside, since the Members will otherwise still
   be required to fund them. *
      - *Additionally, the division of existing assets has not been
      mentioned yet and will be a key issue. I believe the Sections should be
      able to take their financial reserves with them in any split.  *
      - *In my view, the health and success of any new Voluntary Bar would
      require spending cuts in legacy WSBA costs and expenses so that
total dues
      for any new Mandatory Bar plus the Voluntary Bar are no more than current
      WSBA dues. In other words, there are certainly efficiencies to
be gained in
      a restructuring, but only if all spending is reviewed and "rationalized"
      for the new structure(s). These may be the most contentious issues of all
      in any restructuring.” *

One of the cases seeking to further limit mandatory bar membership and dues
is *Fleck v. Wetch*, No. 17-886, now pending on a Petition for review (
*certiorari*) at the U.S. Supreme Court. *Fleck* was filed long before the
U.S. Supreme Court's June decision in *Janus v. AFSME*,
https://www.supremecourt.gov/opinions/17pdf/16-1466_2b3j.pdf.  The U.S.
Supreme Court material for *Fleck* is:
https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/17-886.html
.



The Petition filed in *Fleck* was considered, but not decided, at the
Court's September 24th end-of-summer "conference."  *Fleck* was relisted
for the next upcoming conference on Oct. 10, the third "relist" of that
Petition. There are several reasons why a case could be re-listed,
including that one or more Justices want to take a closer look, that the
Court will summarily reverse the lower court and remand in light of *Janus*,
that the Court wants to give likely new Justice Kavanaugh a chance to
review the case, or that a Justice wants to write a dissent to a denial of
the Petition.



The next meeting of the board is November 16, 2018 in Seattle.



Please feel free to contact me with any questions, comments or concerns.
I am committed to a free flow of information to and from our members about
issues of importance to us as attorneys and with regard to the practice of
law.



Regards,

___________________________



Carla J. Higginson, Attorney
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