WSBA 1933 / WSBA 2017 — My letter to AG Bob Ferguson

I wrote to Washington State Attorney General Bob Ferguson on the 15th of February about the two associations, one a bar association, the other an association of legal service providers.  Go here .

That was on the 15th, I repeat.  Today I received a response; a letter from Jeffrey T. Even, Deputy Solicitor General.

My request was rejected.  I have to say, I am surprised.  Here is the letter from Mr. Even, go here.

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The Way Things Are: Niccolo Machiavelli

 

How true:

It must be remembered that there is nothing more difficult to plan, more doubtful of success, nor more dangerous to manage than a new system. For the initiator has the enmity of all who would profit by the preservation of the old institution and merely lukewarm defenders in those who gain by the new ones.

 ― Niccolò Machiavelli

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Power of Supreme Court – More Thoughts

I think the Supreme Court began expanding its power over the Washington State Bar Association of 1913 in 1987 or so when William S. Gates, Sr., in a letter to the Court, wrote about WA General Rule 12.  I also think that at that time the Supreme in GR 12.1(b)22 said:

(22) Establish the amount of all license, application, investigation, and other related fees, as well as charges for services provided by the Washington State Bar Association, and collect, allocate, invest, and disburse funds so that its mission, purposes and activities may be effectively and efficiently discharged. The amount of any license fee is subject to review by the Supreme Court for reasonableness and may be modified by order of the Court if the Court determines that it is not reasonable.

The power the court thinks it has is shown by this: “The amount of any license fee is subject to review by the Supreme Court for reasonableness and may be modified by order of the Court if the Court determines that it is not reasonable.”

I do not know where the Court got this notion.  This sentence cannot be characterized as a regulation.  Instead, it is a power to say a fee is not reasonable and that it may be modified.  This means the court can tell the bar association and its members what the fee should be.  This might be permissible with regard to the fee as to the portion which sustains the disciplinary function.  But the fee is not so limited.  It may be used for other bar purposes, expression?  Where does the court get the authority to impose fees for expression of bar members?

 

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The Power of the Supreme Court

The extent to which the Supreme Court thinks it has authority over the Washington State Bar Association is not unrelated to the power the Supreme Court is attempting to exercise over entire state of Washington.  See Eugster Law Office.

 

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Case 5, Reply filed

Case 5 is a US District Court, Eastern District, Washington.  The primary issue in the case is whether the WSBA Washington Lawyer Discipline System violates Eugster’s right to procedural due process of law under the Fifth and Fourteenth Amendments.

Yesterday Eugster filed his Reply Brief.

All of the necessary pleadings in the trial court and the 9th Circuit may be found at the Case 5 page of this site.

 

 

 

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The New Washington State Bar [sic] Association, Case VIII

The Washington State Bar Association, created by the Bar Act of 1933, came to an end on September 30, 2016 when the WSBA Bylaws were significantly amended.

During the afternoon of that day, the WSBA Board of Governors acted to re-form the bar association into an association which includes new mandatory members and mandatory dues payers. The members are lawyers, limited practice officers (APR 12), and limited license legal technicians (APR 28). The “new” WSBA will also operate discipline systems for the groups of new members.

This new association is referred to herein as “WSBA 2017″ or “New WSBA.”  The previous association is referred to “WSBA 1933” or “Old WSBA.”

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One cannot look upon this effort as personal

Saturday, December 3, 2016, 8:19 am

To do this work, one cannot take it personally. Success is not personal. Failure is not personal. This work is something else. It is a battle for ideas and ideals. There are winners and losers, but only in the battle which is being played out. I say I am advocating a better Washington Lawyer Discipline System. The bar association and its representatives say I am a disgruntled lawyer who should be disciplined, suspended or disbarred. They are wrong. I am not, nor do I feel, estranged from the law and the practice of law. Not in the least.  And, anyway, what of the opinion of others?  It is meaningless.

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WSBA Records Case VII: Does the Washington Public Records Act Apply?

Case VII is a WSBA Records Request.  The court rule regarding Bar Records, GR 12.4, is used.  The question which will eventually be raised and decided is whether the Court Rule GR 12.4 applies to the exclusion of the Washington Public Records Act, RCW Ch. 42.56.

In the recent the WSBA’s  Response to Eugster’s Appeal to the Records Review Appeal Officer under GR 12.4, the WSBA takes the position the Washington Public Records Act, RCW Ch. 42.56, does not apply.  Here is what the WSBA says:

As a preliminary matter, access to Bar records is governed by GR 12.4. Therefore, any suggestion by Mr. Eugster that Bar records are subject to the Public Records Act (PRA), RCW 42.56, or that the question is “yet to be decided,” Eugster Br. at 8-9, is incorrect. The Washington Supreme Court has clearly held that the PRA does not apply to the courts, Federal Way v. Koenig, 167 Wn.2d 341 , 346,217 P.3d 1172 (2009), and the WSBA operates under the authority of the Washington Supreme Court. See, e.g., GR 12.1-12.3; Rules for Enforcement of Lawyer Conduct (ELC) 2.1; Admission and Practice Rules (APR), passim. In the only case the WSBA is aware to have addressed the issue, the court held that the PRA does not apply to Bar records. See Seattle Times Co. v. Wash. State Bar Ass ‘n, No. 88-2-01118-4 (King. Co. Sup. Ct. Feb. 26, 1988) (Attachment H). And the Washington Supreme Court clearly and unequivocally “decided” the issue when it enacted GR 12.4. See GR 12.4U) (confirming that PRA does not apply to Bar records, but may be used for non-binding guidance). GR 12.4 does, however, incorporate by reference the PRA’s exemptions from disclosure (in addition to those specific exemptions contained in GR 12.4 itself) – that is, if a record would be exempt under the PRA, it is also exempt under GR 12.4. See GR 12.4(d)(l).

2016_09_28_wsba-response-brief-w-attachments,  page 4

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WSBA Today: Big Changes are Coming

I watched a WSBA Webinar today.  It was about changes in WSBA governance.  The changes have been discussed and commented upon for over two years.  In September at the WSBA BOG (Board of Governors) meeting certain items will be discussed.

The person to whom questions concerning the changes and the reason for the changes were addressed to Robin Hayes, the Spokane lawyer who will succeed Bill Hyslop (a former partner of mine).  Ms. Hayes was quite energetic in her answers but each time she avoided the answers which truly explained what the “New WSBA” was about.  She was politically adept, surprisingly so.  Nevertheless, a truth was unwittingly (perhaps) being told.  The truth was overall the Washington Supreme Court was in the process of gaining control over the WSBA and its members — lawyers compelled to be members of the bar in order to practice law.

  1. The current WSBA leadership seeks to adopt significant changes to the WSBA.
  2. The bar is to recognize the ultimate authority of the WSBA is the Supreme Court.
  3. The bar will undertake at its cost various “programs” and “not quite lawyer groups.”
  4. The WSBA cannot object.  And, why is that?
  5. Reaching back to 1987 and a man who has great respect in the Washington – Seattle legal community, the proponents of the “new” WSBA refer to a memo by Mr. Gates to the Supreme Court commenting in favor of then GR (General Rule) 12.1 through 12.4.  He said the court in light of the Graham Case.  Mr. Gates asserted the WSBA was “clearly an instrumentality of the Supreme Court and it is wholly appropriate for the parent to, by rule, set the purposes of its instrumentality.”  WSBA Memorandum from Paula Littlewood, Jean Mc Elroy and Douglas Ende to the WSBA President, President-elect and Chief Disciplinary Counsel  August 10, 2016.

One of the participants of the Webinar asked in essence “why is all this taking place now” what is the cause of the rush to change things, to increase the power of the Supreme Court over the WSBA.  Ms. Robin Hayes said what was being presented was based on comments in the record of proceedings of the bar and the Task Force.  Hardly a reason in that few comments are ever made, despite the fact the WSBA now has about 38,000 members.

So why is this happening?  Was is the Supreme Court trying to secure unto itself broader power over the WSBA?  I do not know, but I suspect it has to do with a common desire of the present membership of the Supreme Court to enlarge the scope of its power.  I think of the McCleary School Funding case.

One of the participants of the Webinar asked in essence “why is all this taking place now” what is the cause of the rush to change things, to increase the power of the Supreme Court over the WSBA.  Ms. Robin Hayes said what was presented was based on comments in the record of proceedings of the bar and the Task Force.  Hardly a reason in that few comments are ever made, despite the fact the WSBA now has about 38,000 members.

So why is this happening?  Was is the Supreme Court trying to secure unto itself broader power over the WSBA?  I do not know, but I suspect it has to do with a common desire of the present membership of the Supreme Court to enlarge the scope of its power.  I think of the McCleary School Funding case.

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Unauthorized Practice of Law — Minnesota v. Colorado Attorney Helping In-laws

In late August, 2016, the Minnesota Supreme Court admonished a Colorado lawyer for helping his in-laws regarding a judgment against them by a condominium association.  The judgment was about $2,500.  The Colorado lawyer corresponded with the Minnesota lawyer representing the association.  The Minnesota attorney filed a complaint.  The bar and the Minnesota Supreme court held that the communications with the Minnesota attorney by the Colorado attorney about his in-law’s judgment consisted of the unauthorized practice of law.  Minn. High Court Scolds Colo. Atty for In-Laws Case.  The decision can be found here — Case A15-2078, Supreme Court of the State of Minnesota.

One thing seems clear to me, and that is this:  The term “practice of law”  does not include the efforts of a Colorado lawyer in trying to help his in-laws by email contact with the lawyer of the condominium association to settle and pay the judgment.

The contacts emanated from Colorado, the work was for the lawyer’s in laws, it was minor amount in question, all the lawyer was trying to do was to settle a debt.

This case poses a real problem for lawyer discipline systems.  How was the lawyer to know that his efforts would be defined in Minnesota as a violation of the rules of professional conduct.  They do not.

But they do if Minnesota interprets their laws as liberally as it does.  The prosecutorial decision seems arbitrary, nit-picking, harassment by the righteous.  It is probably also a violation of anti-trust laws – see below. 1 How, one may ask, does this conduct amount to a violation of Minnesota law?  Only because Minnesota seeks to preserve the monopoly power of the bar association.

1  Minnesota Statutes 325D.52 ESTABLISHMENT, MAINTENANCE, OR USE OF MONOPOLY POWER.

The establishment, maintenance, or use of, or any attempt to establish, maintain, or use monopoly power over any part of trade or commerce by any person or persons for the purpose of affecting competition or controlling, fixing, or maintaining prices is unlawful.

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