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Board members quit, blast Washington State Bar in fight over UPL, legal technicians

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Updated: Washington state’s Practice of Law Board has been hit with mass resignations and departures as a result of a long-running feud with the bar association’s leaders.

On Monday, former board members released an 11-page letter (PDF) accusing the executive director of the state bar of pursuing “a campaign to eliminate the Practice of Law Board” over differences in philosophy on how to bridge the access-to-justice gap in the state. According to the letter—signed by four former members of the POLB, including ex-chairman Scott Smith—there have been multiple clashes between the POLB and the bar over the POLB’s role in regulating the unauthorized practice of law.

“The treatment of the practice of law board over the last three years is a textbook study on how to discourage and disempower a board comprised of volunteers: oppose their mission; cut their budget; withhold meaningful staff support; personally attack and seek to oust the volunteers who disagree with you; conduct secret meetings to discuss the future of the group without informing its volunteer members or inviting them to participate; dismiss or reject out of hand the volunteers’ concerns; and replace the group’s members and leadership team,” the resigning board members wrote. “There is no surer way to demoralize a group of volunteers and undermine their good intentions.”

The Practice of Law Board was set up as an independent entity under the Washington State Supreme Court and was to be administered and partially funded by the state bar. Though it was so structured to ensure that the POLB would not be unduly influenced by the rest of the bar association, the letter says, the POLB had been undermined and even threatened with elimination on multiple occasions. The letter traced the POLB’s problems with the WSBA to the debate over the Limited License Legal Technician Rule, which allows non-JD legal professionals to deliver limited legal services in certain designated practice areas. The rule, proposed by the POLB and opposed by the bar’s Board of Governors, became state law in 2012.

“The Washington State Bar Association has a long record of opposing efforts that threaten to undermine its monopoly on the delivery of legal services,” the four resigning board members wrote. The 13-person POLB is now down to four as a result of resignations and terms that were not extended.

The ABA Journal sought responses from current POLB chairman Paul Bastine, and Washington Supreme Court Chief Justice Barbara Madsen, but did not hear back.

In a statement to the ABA Journal, the Washington State Bar Association said that the letter contained “significant misinterpretations and misunderstandings.” The letter also maintained that the POLB, when reinstated, was instructed to focus on consumer protection and explore new ways for nonlawyers to provide legal and law-related services and to cease its enforcement activities. “Access to justice and the protection of the public are unwavering commitments shared by the Washington Supreme Court and the Washington State Bar Association,” Robin Haynes, president-elect of the Washington State Bar Association, said in the statement. Haynes also said that the Board of Governors has forwarded a list of nominees to the POLB for consideration by the supreme court.

The executive committee of the Washington State Bar has also released a statement, saying: “It is of deep concern that the letter personally attacks individual staff. The integrity, competence and character of WSBA staff are unquestionable, and it is undeserved and unconscionable for individuals to attack and discredit them. All staff actions were consistent with the direction of the Court and the Board of Governors.”

The resigning POLB members also noted that the WSBA Board of Governors voted unanimously to eliminate the POLB in May 2012, a month before the Washington Supreme Court formally adopted the LLLT rule. The supreme court voted to reinstate the POLB in June. The statement from the executive committee disputes this, saying: “The Board of Governors has no authority to eliminate the POLB and has never voted to do so. The POLB is a Supreme Court-created and -appointed board whose appointments and direction come directly from the Court.”

In an interview, former POLB chairman Smith says he is concerned that the board will simply cease to exist now that he and his fellow ex-members have resigned.

“The composition of board is critical,” Smith said. “If you can control who is on the board, then you can control the outcome. [Chief Justice Madsen] rejected our opinions on who should serve on the board, and the court was putting off having a conversation with us about our concerns. As a volunteer board, it’s pretty hard to get a whole lot done if we don’t have support.”

Smith also says he is worried that without a strong, independent POLB in place, the access-to-justice gap will continue to widen. “To be fair to the state bar, they’ve done some great things to promote access to justice,” Smith said. “For instance, they made a significant contribution to legal aid a couple of years ago. Where the conflict comes is when they believe that something will affect the livelihood of their members.”

Smith says that at the time the board went dormant prior to its June reinstatement, he and others were working on a proposed rule that would allow nonlawyers to help register trademarks for clients. “We drafted an advisory opinion, and the IP section of the state bar had a problem with this,” Smith says.

In the end, Smith and his three fellow signatories, Rebecca Baker, Mark Han-Ku Kim and Juan Pablo Paredes, said they will look for other avenues to continue exploring ways to bridge the access-to-justice gap.

“If the board is no longer independent and becomes a rubber stamp for the state bar, then it’ll prevent any meaningful reforms to solving the access-to-justice gap,” Smith said. “They might decide instead to just get rid of the board rather than rebuild it from scratch.”

Updated on Nov. 13 to add additional comments from Washington State Bar officials.