Washington State Bar Association Faces Possible Extinction

March 19, 2019, 1:15 PM

A bill that would diminish or dissolve the Washington State Bar Association carries potentially serious risks, including legal action, if it’s finalized, the group is warning legislators.

Three association governors and the group’s president-elect, Rajeev Majumdar, were to appear before the state Senate Law & Justice Committee on Tuesday to press the case against the legislation which has already cleared the House.

The proposal is “premature, its implications are currently unknown, and its unintended consequences are potentially substantial, irreversible and likely to lead to federal litigation,” the group said in prepared remarks.

The bill reflects an ongoing national conversation about the appropriate role of mandatory bar associations in light the U.S. Supreme Court decision in North Carolina State Board of Dental Examiners v. FTC.

That decision strips anti-trust immunity when boards are populated by working practitioners not under state supervision. Also in play is requiring mandatory membership fees that could impair First Amendment rights, as articulated in the high court in Janus v AFSCME.

The measure to repeal the State Bar Act and eliminate the association as a legal entity passed the House 96 to 1 March 7.

Rep. Laurie Jinkins (D), chair of the House Civil Rights & Judiciary Committee, said in a telephone interview that the measure would leave the ultimate disposition of the 40,000 attorney-members up to the state Supreme Court.

A working group appointed by that court is studying how to appropriately govern the association in light of the U.S. Supreme Court’s decisions.

The state court “could do what it wanted without having to think about the State Bar Act,” said Jinkins, who has been a bar member for almost 30 years. “It’s actually unclear whether the court even recognizes the Legislature’s authority to regulate the state bar association at all.”

Jinkins said she anticipates an amendment will be heard in the Senate committee that would leave the association intact as a legal entity, though how it will end up almost certainly depends on what the working group concludes.

She gives the bill better than a 50 percent chance of passage.

The association’s Board of Governors decided after the measure passed the House to oppose it.

There are other options being considered by the working group that don’t involve eliminating the Bar Association.

They include “causing the WSBA to avoid all political speech and political activity, or bifurcating it into a voluntary bar association under the current entity.

A mandatory set of licensing and disciplinary functions also would be transferred to the court, the governors say.

The bar association leadership lacks unanimity on the best course.

The proposal “essentially does nothing more than simply reaffirm the plenary authority that the Supreme Court of Washington has held for decades over the bar association and the practice of law,” sitting WSBA President Bill Pickett said.

“You would want your Supreme Court to exercise full authority over licensing and discipline of lawyers. And if lawyers don’t want that, I would want to know why,” he said.

To contact the reporter on this story: Paul Shukovsky in Seattle at pshukovsky@bloomberglaw.com

To contact the editor responsible for this story: John Crawley at jcrawley@bloomberglaw.com

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