Thursday, February 11, 2021

Transparency Denied: Bar Exempt From Open Meetings Obligations

The Washington State Supreme Court has held that the state Bar is not a "public agency" subject to the open meetings act obligations 

The Washington State Bar Association (WSBA) Board of Governors (BOG) terminated the WSBA executive director during a closed executive session. WSBA member Lincoln C. Beauregard sued the WSBA, alleging that the vote to fire the executive director violated the Open Public Meetings Act (OPMA), chapter 42.30 RCW. He demanded that the executive director be reinstated. The trial court held that the OPMA applied to the WSBA and granted Beauregard a preliminary injunction, but not for the requested relief of reinstating the executive director. Instead, the injunction required the WSBA to comply with the OPMA.

Because the OPMA does not apply to the WSBA and because the superior court ordered relief that Beauregard never requested, we reverse the preliminary injunction. 

The litigation related to the termination of executive director Paula Littlewood., who passed away in December 2020.

According to the majority opinion, the only stated reason for the action was a desire to move in a "new direction."

Three members of the court wrote a letter to WSBA asking it "to rescind its unwise decision."

While I am not versed in the intricacies of Washington law, I was certainly receptive to a dissent about state bar operations in general

MADSEN, J. (dissenting)—The practice of law is largely self governing. E.g., Rules of Professional Conduct (RPC) pmbl. ¶ 10. Though subject to modest constraints, the legal profession keeps its own house—lawyers regulate lawyers. Id. ¶¶ 10, 6 (“A lawyer . . . should help the bar regulate itself in the public interest.”); In re Disciplinary Proceeding Against Scannell, 169 Wn.2d 723, 748, 239 P.3d 332 (2010) (recognizing the “self-governing nature of the practice of law”). The autonomy of the legal profession  with it “special responsibilities of self-government.” RPC pmbl. ¶ 12. Among the most important of these responsibilities is service to the public. See id. ¶¶ 12, 13; In re Disciplinary Proceeding Against Huddleston, 137 Wn.2d 560, 573, 974 P.2d 325 (1999) (“[L]awyers owe an ethical duty [to their clients,] to the legal system, to the legal profession, and to the general public.” (emphasis added)).

It is the mission of the Washington State Bar Association (WSBA) to protect and serve the public by regulating legal practitioners in the state. Who We Are, WASH. ST. ASS’N, []; Clerk’s Papers (CP) at 53 (WSBA Bylaws (I)(A)) (stating that WSBA carries out its mission by, among other things, fostering goodwill between the legal profession and the public and by administering admissions, regulation, and discipline of legal professions so to protect the public).

To carry out this mission, WSBA, just as any other governing institution, must be transparent. See RPC pmbl. ¶ 6 (“legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority”). Public access to information about the conduct of government is a “precondition” of democracy and  to the legitimacy of government itself. Eugene Cerruti, “Dancing in the Courthouse”: The First Amendment Right of Access Opens a New Round, 29 U. RICH. L. REV. 237, 304 (1995); see also WASH. CONST. art. I, § 1 (“All political power is inherent in the people, and governments derive their just powers from the consent of the governed.”); Progressive Animal Welfare Soc’y v. Univ. of Wash., 125 Wn.2d 243, 251, 884 P.2d 592 (1994) (plurality opinion) (quoting Letter to W.T. Barry (Aug. 4, 1822), in THE WRITINGS OF JAMES MADISON: 1819-1836, at 103 (Gaillard Hunt ed., 1910) (“‘A popular Government without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both.’”)). Self-governance is unique to the practice of law. Other professions, from accountants to nurses, are regulated and licensed by the State. E.g., List of Licenses, WASH. ST. DEP’T OF LICENSING, []. Because of the legal profession’s close relationship to the processes of government and law enforcement, we have been trusted to govern ourselves—making transparency all the more important. See RPC pmbl. ¶ 10. The judicial branch of government (as well as those who practice within it) must therefore regulate itself “in the public interest,” not merely to further the self-interested concerns of the bar. Id. ¶ 12.

These are the “special responsibilities of self-government.” See id. They are not aspirational. Id. ¶ 11. They are not empty words spoken to ward off threats of external control. See id. Rather, they are a bellwether for the legal profession—an institution invested with substantial public trust. Id. It is our responsibility and our privilege as lawyers to protect that trust. Id. ¶¶ 11-13. In short, we have promised those we serve to govern ourselves. To do so, then, with the public interest in mind, transparency is required. As the present case demonstrates, WSBA and its Board of Governors (BOG) have not fulfilled this ethical duty.

The majority holds that WSBA is not a public agency for the purposes of our state’s open meetings act. Majority at 10. I disagree. In my view, the plain language of the Open Public Meetings Act of 1971 (OPMA), ch. 42.30 RCW, applies to WSBA and BOG. RCW 42.30.020(1). Even if it did not, this court should exercise its authority as leaders of the judicial branch to hold WSBA subject to the same transparency requirements as other governing entities. GR 12.2. Finally, absent existing binding  legislation or the exercise of our plenary authority, we should call on the legislature to do that which we are unable—amend the OPMA to include WSBA and BOG. Accordingly, I respectfully dissent.

Dissent's conclusion

WSBA has struggled and, at times, failed to fulfill its duty to serve the public. The bar has shrouded its decisions from public view. Past and current BOG members, WSBA presidents, WSBA staff, and members of this court have sounded the alarm. The majority’s unwillingness to require transparency in processes of legal self-governance does not protect the public, and will serve only to further erode confidence in our democratic institutions. At a time when trust in government is at historic lows, the legal profession should seek not to close the door to public scrutiny but, instead, to open it further. Because the majority’s view has and will continue to allow WSBA to ignore its ethical duty to operate openly and transparently, I respectfully dissent. 

The controversy was covered by Seattle Times. The ABA Journal also reported on the WSBA controversies. 

The trial court 's order is linked here. (Mike Frisch)

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Great post really like it a lot.

Posted by: Gyani Law | Feb 15, 2021 7:57:25 AM

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