BY JUDGE BRIAN TOLLEFSON (RET.)
As you might know, your Bar Association has several very distinct functions.11 The full spectrum of WSBA programs and activities, as of 2018, is detailed in a chart found here: www.wsba.org/docs/default-source/legal-community/committees/bar-structure-work-group/spectrum-of-wsba-programs.pdf?sfvrsn=576503f1_3. Some functions are categorized as “regulatory/mandatory” and deal with bar activities such as bar licensure, admissions, trust account and MCLE compliance, ethics violations, and discipline. Other activities of your Bar Association are categorized as “permissive/voluntary,” such as member benefit programs, legislative activity, Bar sections, Bar News and other communications activities, and certain Bar committees, work groups, and task forces. Your Bar Association is also responsible for administering and funding certain boards that were created by and answer directly to the Supreme Court.22 E.g., the Access to Justice Board and the Practice of Law Board.
These two categories of activities (mandatory and voluntary) plus the administration of the Supreme Court boards are combined under one “unified” (aka “integrated”) entity, namely the Washington State Bar Association,33 See the WSBA structure spectrum chart in note 1. and funded chiefly by member license fees.44 The total annual budget for the WSBA is approximately $21 million and mandatory member license fees are about $15 million of that total budget amount. Mandatory/unified bar associations that lawyers must belong to in order to practice law in a particular state, and similar to the WSBA, exist in approximately 31 states and the District of Columbia.55 Levin, L., “The End of Mandatory State Bars?” 109 The Georgetown Law Journal Online, pp 1-20 (2020), available at www.law.georgetown.edu/georgetown-law-journal/wp-content/uploads/sites/26/2020/04/Levin_The-End-of-Mandatory-State-Bars.pdf.
For many years, lawyers have debated whether they should be compelled to join unified state bars and, for the most part, legal challenges to the unified bar structure have been rebuffed.66 Id. See the discussion on pages 2 & 11-15. Also, Professor Levin’s nomenclature regarding bar association classification is slightly different than that used in the chart in note 1. Recently, however, a new series of cases in federal courts has called into question whether certain activities of unified bar associations that have both mandatory and voluntary functions violate lawyers’ First Amendment rights. In my opinion, the most closely watched of these recent litigation challenges are two cases that arise out of federal courts in Texas and Oklahoma.77 There is a case involving the Oregon State Bar Association too. See Crowe v. Oregon State Bar, 989 F.3d 714 (9th Cir. 2021). As of mid-January, when I penned this column, both of those cases (and, possibly, a third case) have petitions for writs of certiorari pending before the U.S. Supreme Court.88 In Schell v. Chief Justice and Justices of Oklahoma Supreme Court, 11 F.4th 1178 (10th Cir.), petition for cert. docketed (Nov. 24, 2021), the question presented is: “Are mandatory bar dues that subsidize the political and ideological speech of bar associations subject to ‘the same constitutional rule’ of exacting First Amendment scrutiny that applies to compulsory union fees under Janus?” In McDonald v. Firth, 4 F.4th 229 (5th Cir. 2021), petition for cert. docketed (Jan. 6, 2022), the question presented is, “Does the First Amendment prohibit a state from compelling attorneys to join and fund a state bar association that engages in extensive political and ideological activities?” I will not attempt to summarize here the specifics of those cases because a quick internet search by a reader can provide other websites with a fuller description.
As a result of these new cases, back in December 2021 our Washington Supreme Court directed the WSBA Board of Governors to study and make recommendations about the structure of the WSBA by answering three questions:99 The WSBA minutes of the Dec. 14, 2021, meeting state the questions in this manner. However, I carefully listened to the remarks of Chief Justice Steven González at that meeting and he stated the questions this way: First, have any of the “changes in the law” “dictated” a change to the structure of the WSBA? Second, even if there are not any changes that need to be made, if relief were granted in the pending cases referred to above, what would the new structure look like? Third, regardless, are there any changes that the WSBA thinks should be made for the betterment of the Bar in the interests of justice? The remarks made by Chief Justice González can be viewed at: https://m.youtube.com/watch?v=Arb34v8_khA&list=PLh11oFW23b5hQfFQ-99jU1kEZFh8Kq-34&index=1.
First, are there changes in the law that require changes to the WSBA?
Second, even if changes are not required, if there was a change, what would the new structure look like?
Third, regardless of any of the answers to the first two questions, are there suggested changes as improvements?
In order to answer these questions, the Supreme Court wants the WSBA to seek “broad input.” While these questions are easy to ask, they are not so easy to answer, especially given the request to seek “broad input.” It is also important to point out that this endeavor asked of your Bar Association is not the first. These or similar questions have been investigated and reported on before, as summarized below.
Bar Structure Studies of 2012-15 and 2018-19
Most recently, in November 2018, the late former Chief Justice Mary Fairhurst of the Washington Supreme Court created a 10-member “Bar Structure Work Group” composed of a variety of stakeholders, including three members of the current WSBA Board of Governors. That work group was created “to review and assess the WSBA’s structure in light of (1) recent case law with First Amendment and antitrust implications; (2) recent reorganizations by other state bar associations and/or groups and their reasoning; and (3) the additional responsibilities of the WSBA due to its administration of Supreme Court appointed boards.” The data assembled and reports that were generated from that effort, which lasted nearly a year, are available on the WSBA website.1010 See: www.wsba.org/Legal-Community/Committees-Boards-and-Other-Groups/bar-structure-work-group. The whole endeavor took hundreds of hours by this group of volunteers. I am grateful to them for their dedication and perseverance.
Years earlier, in September 2012, another “Governance Task Force” was created and it was directed to “undertake an in-depth review of the governance of the WSBA, including but not limited to the following aspects of WSBA governance: WSBA overall governance, including but not limited to structure of representation; boards and committees, staff, and financial matters; continuity of operations from year to year; interrelationship between staff and governing body; and effective means of reviewing programs and goals.” Its reports, both interim and final, are available on the WSBA website as well.1111 See: www.wsba.org/connect-serve/committees-boards-other-groups/governance-TF. While the 2012-15 task force may not have been particularly focused on the constitutional issues related to bar structure, its final reports may have information relevant to the third question the Supreme Court asked the WSBA Board of Governors to answer this year.
How Much Time and Money Will All This Cost Our Members?
The forgoing discussion brings me to a corollary topic: How much will this current directive from the Supreme Court cost our members? More accurately stated, how much time, money, and work by the WSBA staff and the Board of Governors will this process entail? The Board of Governors has as one of its most important responsibilities each year the approval of the Bar Association budget of approximately $21 million. The budget for this fiscal year (October 2021 – September 2022) was already approved back in September 2021, and to my knowledge no money was budgeted for the Dec. 15, 2021, decision by the Board about the manner in which to undertake this possibly costly task. At the January Board of Governors meeting, the Board voted to move ahead with adding eight additional meetings to discuss the Bar’s structure. The estimated cost of these additional meetings will vary depending on the ultimate configuration for each meeting.1212 The estimated meeting cost-scenarios presented to the Board can be reviewed here: www.wsba.org/docs/default-source/about-wsba/governance/bog-meeting-materials-2021—2022/jan-2022/board-of-governors-meeting-late-late-materials-january-13-14-2022.pdf?sfvrsn=330a16f1_4.
Questions When Looking at Structure
Since your Bar Association has been asked to undertake a thorough structural review, then it should examine the expenditures of the many boards, committees, councils, task forces, etc. The Board should be looking at every program or requirement now in existence and those that might be proposed in the future following any structural changes and ponder a few simple questions.
A good starting place to examine the WSBA structure is to remember that our Bar Association’s mission statement is “to serve the public and the members of the Bar, to ensure the integrity of the legal profession, and to champion justice.” In light of that mission statement, here are a few questions that come to mind:
First, does the current Bar structure with its current programs or requirements serve both the public and the members of the Bar? In short, does the Bar Association’s existing structure fulfill an essential need of the members and the public? Here are some sub-questions: Are the Bar’s current programs and requirements working for the benefit of all WSBA members and all members of the public? Are there programs or requirements that serve only a few Bar members and not much of the public?
Second, how does any program or requirement help our members be better legal professionals, which in turn benefits the public? Several sub-questions here include: Are there programs or requirements that have lost their benefit to the members and the public, and should be eliminated or reduced? Is the program or requirement the best use of the members’ license fees? Has there been a cost-benefit analysis of the program or requirement? Is there a more cost-effective method of implementation? Are there programs or requirements that are duplicative of what other public institutions are doing?
Answering the Questions
My four-plus years on the Board of Governors (three as District 6 Governor, one as president-elect, and now as your president) have given me much knowledge and familiarity with how the WSBA is organized and operates. I hope to have the Board answer some or all of these questions during this new structure study because so much of what the WSBA does is dependent on our members’ license fees. Accordingly, the Board needs to be deliberate and ensure broad input from the membership as it moves forward while answering the latest “structures” questions from the Supreme Court.
NOTES
*Thank you, Yogi Berra, for this timeless phrase. See https://en.wikipedia.org/wiki/Yogi_Berra#%22Yogi-isms%22 and https://en.wikipedia.org/wiki/Deja_Vu_All_Over_Again.
1. The full spectrum of WSBA programs and activities, as of 2018, is detailed in a chart found here: www.wsba.org/docs/default-source/legal-community/committees/bar-structure-work-group/spectrum-of-wsba-programs.pdf?sfvrsn=576503f1_3.
2. E.g., the Access to Justice Board and the Practice of Law Board.
3. See the WSBA structure spectrum chart in note 1.
4. The total annual budget for the WSBA is approximately $21 million and mandatory member license fees are about $15 million of that total budget amount.
5. Levin, L., “The End of Mandatory State Bars?” 109 The Georgetown Law Journal Online, pp 1-20 (2020), available at www.law.georgetown.edu/georgetown-law-journal/wp-content/uploads/sites/26/2020/04/Levin_The-End-of-Mandatory-State-Bars.pdf.
6. Id. See the discussion on pages 2 & 11-15. Also, Professor Levin’s nomenclature regarding bar association classification is slightly different than that used in the chart in note 1.
7. There is a case involving the Oregon State Bar Association too. See Crowe v. Oregon State Bar, 989 F.3d 714 (9th Cir. 2021)
8. In Schell v. Chief Justice and Justices of Oklahoma Supreme Court, 11 F.4th 1178 (10th Cir.), petition for cert. docketed (Nov. 24, 2021), the question presented is: “Are mandatory bar dues that subsidize the political and ideological speech of bar associations subject to ‘the same constitutional rule’ of exacting First Amendment scrutiny that applies to compulsory union fees under Janus?” In McDonald v. Firth, 4 F.4th 229 (5th Cir. 2021), petition for cert. docketed (Jan. 6, 2022), the question presented is, “Does the First Amendment prohibit a state from compelling attorneys to join and fund a state bar association that engages in extensive political and ideological activities?”
9. The WSBA minutes of the Dec. 14, 2021, meeting state the questions in this manner. However, I carefully listened to the remarks of Chief Justice Steven González at that meeting and he stated the questions this way: First, have any of the “changes in the law” “dictated” a change to the structure of the WSBA? Second, even if there are not any changes that need to be made, if relief were granted in the pending cases referred to above, what would the new structure look like? Third, regardless, are there any changes that the WSBA thinks should be made for the betterment of the Bar in the interests of justice? The remarks made by Chief Justice González can be viewed at: https://m.youtube.com/watch?v=Arb34v8_khA&list=PLh11oFW23b5hQfFQ-99jU1kEZFh8Kq-34&index=1.
10. See: www.wsba.org/Legal-Community/Committees-Boards-and-Other-Groups/bar-structure-work-group.
11. See: www.wsba.org/connect-serve/committees-boards-other-groups/governance-TF.
12. The estimated meeting cost-scenarios presented to the Board can be reviewed here: www.wsba.org/docs/default-source/about-wsba/governance/bog-meeting-materials-2021—2022/jan-2022/board-of-governors-meeting-late-late-materials-january-13-14-2022.pdf?sfvrsn=330a16f1_4.