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Posts Tagged ‘Washington Bar dues increase’

44 years after apparently being the first state to consider implementing a mandatory malpractice insurance program, the nannies at the Washington State Bar Association (WSBA) are at it again. In an article in the current NW Lawyer, the WSBA governors “recently took up the question of whether requiring malpractice insurance for lawyers as a condition of licensing is an appropriate mechanism to help fulfill the regulatory duty to protect the public.”

Invoking the latest governance-consultant babble, the board held “a generative discussion” on the topic at its May meeting. A decision whether to create a mandatory malpractice insurance task force is set for its September 28-29 meeting.

Ironically, it matters little that the same article mentioned that 85% of Washington private practice lawyers already carry malpractice insurance. Apparently, it’s time to round-up the 15%.

https://upload.wikimedia.org/wikipedia/commons/thumb/d/d4/The_Cr%C3%A8che.jpg/320px-The_Cr%C3%A8che.jpgBecause mandatory bar membership weaponizes governing boards to over-regulate and interfere with member personal choice and member financial interest, governors deem their latitudes unbounded. And when they claim guidance from the holy spirit of public protection, they feel empowered with the grace to do almost anything. Moreover, given the Washington Bar’s history, there’s hardly a doubt the WSBA will again ‘make friends’ among its restive members. It will march down the same liberty and property infringing road as its Pacific Northwest predecessors Oregon and Idaho, the only jurisdictions in the U.S. that currently force their lawyers to buy malpractice insurance.

A Scarlet Letter

https://upload.wikimedia.org/wikipedia/commons/thumb/2/2e/The_Scarlet_Letter_%281917%29_1.jpg/302px-The_Scarlet_Letter_%281917%29_1.jpg“Forcing an attorney to have malpractice insurance to protect those who would use his services, or forcing him to disclose that he doesn’t have such coverage, will predominantly adversely impact new solo and small-firm lawyers, punishing them for a being new and financially tight. Instead of branding new uninsured attorneys with a Scarlet Letter, why not simply educate the consumer on the benefits of having a lawyer who is insured. If they are litigious, they’ll seek out the insured attorneys, I promise.

“As a profession, we already have certain protections in place to help the victims of malfeasance. Let the state Client Security Fund reimburse qualified victims. Let the Statewide Grievance Committee disbar irresponsible or criminal lawyers. Then let the criminal courts take it from there.” – Attorney Susan Cartier Liebel writing at Build a Solo Practice, LLC, “Mandatory Malpractice Insurance Only Hurts Law-Abiding Lawyers”

In 2008, the Virginia State Bar also considered mandating malpractice insurance. According to opponents in addition to the high cost on solos and small firms, “The most troubling aspect of the proposal is the concern that it would allow insurance companies to dictate who gets to practice law. While insurance might be available to lawyers with a poor claims history or a lawyer in a high-risk area of practice, the cost of that insurance might be prohibitive.

“A significant hardship would be imposed on a lawyer who is denied coverage because of a pending disciplinary complaint when ultimately the lawyer is exonerated of wrongdoing. If in the meantime his or her license to practice law is suspended because of an inability to obtain insurance coverage as a result of the pending complaint, the lawyer may suffer irreparable harm.” See “Mandatory Malpractice Insurance—It’s Time To Call The Question”

More recently, a well-heeled Nevada personal injury lawyer opined in an “Open Letter” that in addition to mandatory disclosure, Nevada’s Bar and Supreme Court need to create “a not-for-profit professional liability insurance provider for Nevada attorneys to provide competitive low-cost malpractice insurance for its members.” And if his proposal happens to exclude “some lawyers from practicing in Nevada because they may not be able to obtain malpractice insurance” — so be it.

“. . . if a lawyer’s record is so bad that they are unable to obtain malpractice insurance because the risk is too high for the insurer, is it not better that they are precluded from practicing law in Nevada than putting consumers at risk for their malpractice?” The Nevada Bar’s governing board is currently task forcing the matter. And if Oregon’s Professional Liability Fund is any barometer, don’t look for “competitive low-cost” coverage for Nevada lawyers. This year, Oregon lawyers were each assessed $3,500.00 for less bang-for-the-buck $300,000 per claim and $300,000 aggregate coverage.

Terms of Estrangement

As for Washington, it’s not like its Board of Governors hasn’t already sufficiently estranged itself from its members. In 2015, it inflicted unwelcome competitive pressures on underemployed lawyers by spearheading non-lawyer delivery of legal services by Limited License Legal Technicians. The technicians compete for lawyers’ income-generating work — without the toil and treasure invested by lawyers to obtain a Juris Doctor degree. “Who says you need a law degree to practice law?” So much for lip service paid to the unauthorized practice of law — not when you can pucker those lips around a convenient ‘access-to-justice’ exemption.

And more lately, the Board increased licensing fees from $325 in 2016 to $458. And to further pickle the wound, the Board punctuated the increase by obtaining court sanction to ignore a licensing fee referendum petition signed by 2,180 members that would have rejected the astounding 141% increase.

Evidently, member criticism doesn’t faze WSBA leadership. Despite repeated lawsuits and attempts to rein them in legislatively, the Washington Bar’s tin-eared imperiousness is seemingly boundless. Indeed, their arrogance may even exceed that of the State Bar of Arizona.

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Credits: snugglebunny, by parian, at Flickr Creative Commons attribution; The Crèche, by Albert Anker, Wikimedia Commons, public domain; The Scarlet Letter (1917), Wikimedia Commons, public domain; Sooooooooooooooooooooopa Tramp!!!!!!!!!!!!!!!!, by AndYaDon’tStop, at Flickr Creative Commons attribution.

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“. . . the membership, what are they? Peons that can be ignored by the higher-ups in the bar and the court get together? That’s the concern here.” – Washington State Senator Mike Padden, Committee Chair, Law and Justice, directed at WSBA officials’ testimony, 2-14-17.

Entertainment 606As previously reported, the mandatory membership Washington State Bar Association (WSBA) has its hands full following the state supreme court’s de facto nullification of a member referendum that challenged a board-approved 141% mandatory dues hike. No matter that the referendum process is provided for in the bylaws. Or that its terms were legally satisfied by more than the requisite signatures to qualify. Or that board members might have done delighted hand stands once the high court pronounced its blessings upon them.

Never mind, too, member due process even though Sen. Mike Padden opined due process rights were violated by actions he termed “under the radar.” Sen. Padden is a lawyer and a member of the Washington Bar and his Law and Justice Senate Committee heard testimony February 14, 2017 from proponents and opponents of his bill, SB 5721. It requires the Washington State Bar Association“to obtain an affirmative vote prior to increasing bar dues for membership.”

The bill expressly states that “any membership fee increase approved by the board must be submitted to active members for approval by a vote. Any fee increase not receiving a majority of member votes received is disapproved and may not be assessed to any member. This subsection applies retroactively to fee increases approved by the board in 2016 or later.” Arizona lawyers can dream.

https://cdn.morguefile.com/imageData/public/files/l/luisrock62/preview/fldr_2004_08_23/file000180666737.jpgBut what’s clear here is that when a member referendum threatens to overturn a mandatory dues increase, well that’s just too inconvenient for bar leaders hellbent on wresting more money for the bureaucratic maw.

The referendum was signed by more than 2,100 members. And while they may have been stymied by the board and the court, give credit to Washington’s lawyers for not sitting on their hands when confronted with a momentary setback. As a result, things are no longer moving according to plan for the WSBA.

Moreover, such quintessential imperiousness can have lasting consequences, including possibly galvanizing members to as Sen. Padden conjectured of his bill’s proponents that “their only option is a voluntary bar like other states have if these kinds of activities are going to go on . . . violating due process rights. . . .”

Behind the woodshed.

https://cdn.morguefile.com/imageData/public/files/g/gracey/preview/fldr_2004_08_22/file000930089334.jpgIt’s particularly gratifying to acknowledge yet another legislature taking its own homegrown gaggle of arrogant bar leaders to the proverbial woodshed for in this case, a very public dressing down. The same recently happened in front of Arizona’s House Judiciary Committee where Committee Chair Rep. Eddie Farnsworth, an attorney and member of the bar, became increasingly frustrated with testimony opposing bar reform legislation from the State Bar of Arizona and its defenders.

Not so much for the WSBA.

Washington lawyer Angus Lee, one of the proponents of SB 5721, followed up his testimony before the Senate Committee on Law and Justice by posting about it on his blog. In classic understatement, Lee stated, The Senate hearing on WSBA membership dues, went well for the membership. Not so much for the WSBA.” The bill was passed by the Law and Justice Committee with a “do pass” recommendation.

Lee further declared, “Hearing highlights are a must watch for any dues paying WSBA member.” But why stop there? They’re a “must watch” for mandatory bar dues paying members everywhere.

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Mike Padden Image

State Sen. Mike Padden

Kudos to State of Washington lawyers. They’re fighting the latest kick to their billfolds and keisters arising from a 141% licensing fee increase approved by the Washington State Bar Association’s (WSBA) Board of Governors. Last September, the WSBA’s governors voted to raise licensing fees from $325 to a whopping $458 by 2020.

By subsequent Order, the Washington Supreme Court sacramentally blessed the proposed fee increase deeming it “reasonable.” The justices also refused to tie any future increases to a cost of living index as proposed by a member referendum petition.

Ubi Jus Ibi Remedium

https://cdn.morguefile.com/imageData/public/files/h/hotblack/preview/fldr_2008_11_02/file0001565651674.jpgThere’s an ancient legal maxim that for every wrong, the law provides a remedy. But in the real world, even this most aspirational of principles is soon enough found wanting. Therefore, left without apparent remedy, Washington lawyers turned to their state legislature. On February 6, 2017, WSBA member and state senator Mike Padden introduced Senate Bill 5721. The Bill would require the WSBA “to obtain an affirmative vote prior to increasing bar dues for membership.”

SB 5721 is in reaction to the Washington Supreme Court’s Jan. 5, 2017 order — that on its own motion without formal prompting from another party — overruled a December 20, 2016 citizen petition filed by 2,180 Washington Bar members calling for a member referendum to reject the licensing fee increase.

As explained by an email forwarded to me by a Washington lawyer, “The Supreme Court’s order, issued without briefing or discussion, has raised an important constitutional challenge to the Legislature’s power over taxes and government regulation; the Court’s challenge is entirely unnecessary. SB 5721 can resolve that conflict quickly and easily, while protecting the interests of the public and the profession. SB 5721 does not create new law; it does not direct an outcome on the member referendum. SB 5721 simply returns the law to what it was before the Supreme Court changed it.”

The email goes on to pose the following series of questions to Washington lawmakers. “Can the Supreme Court now set taxes and establish public policy through a regulatory body that it indirectly controls? Can it do so without briefing or explanation? Can it do so when those closest to the effects and burdens of such public policy — those who pay for it directly — are denied the use of established procedures to petition the government for redress of grievances, without even a hearing or any other form of due process? Who is to guard the rights of Washingtonians when the Supreme Court itself is the offender?”

In reply, the answer and the anticipated remedy is: “It must be the Legislature, a co-equal branch and author of the State Bar Act.”

Mother’s milk.

cowabungaThe WSBA last tried raising fees in 2012. A member referendum rejected that proposed increase.

But if there’s one more thing that’s certain — besides death and taxes — it’s that money is also the mother’s milk of bureaucrats.1 And all the better when it’s OPM (other people’s money).

It’s no surprise, then, that bar bureaucrats would be: (1) back for more money and (2) looking for an end-around what must be for them irritating member referenda. In their minds, if you’re forced to belong as a precondition to practicing law in the state, you might as well meekly turn over all four cheeks along with your mandatory fees without complaint. It’s your privilege and their right.

The upshot of it all is a state constitutional challenge — not to mention what lawyers like to do best — litigation. A complaint was filed January 15, 2017 that also challenges the Washington Supreme Court’s power to set WSBA licensing fees.

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1Apologies to the late Jesse Unruh for paraphrasing his famous quote about money and politics.

 

 

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