September 13, 2016
Board of Governors
Washington State Bar Association
1325 Fourth Ave., Suite 600
Seattle, WA 98101-2539
Re: Comments on Proposed Changes to WSBA Bylaws
Dear Members of the Board of Governors and other WBSA Leaders,
Bylaws are the operating code of an organization. The techniques of writing successful code have vastly improved in recent years, but the legal profession has not kept up. The current project to improve WSBA’s Bylaws suffers from this.
In particular, the drafting of the Proposals has so far failed as an exercise in openness. Openness in writing code serves three purposes:
· Quality: The effectiveness of the code is maximized when all stakeholders can review drafts of the code, test them, and submit criticism and edits in an interactive process.
· Education: The process of open review and editing educates stakeholders as to the purpose and functionality of the code.
· Legitimation: Open processes support the feeling that the code was fairly created. One may not agree with the result, but when all are involved in the process, the results tend to be accepted as legitimate.
As to each of these three elements, the development of the Bylaws Proposals is lacking. The quality has not been tested by broad independent review. Stakeholders have not been educated as to the content. The process is widely seen as not open and legitimate.
As a result, whether the Proposals are wise or not, their implementation may cause the organization and its goals to suffer unnecessarily.
The responsible thing for BOG to do in such a case is to open the Proposals up for global review by all stakeholders (crowdsourcing, if you will), including all WSBA members and including such others as BOG sees fit. Only an open process of quality review, education and legitimation can have the best result for the goals of the organization in the long run.
What Is Openness?
Recently the Washington State Bar Association unintentionally ran an experiment with the concept of “openness”. Its Board of Governors (“BOG”) created Workgroups that held a series of meetings that produced Proposals for major revisions to its Bylaws (the “Proposals”).
· The Workgroups maintain that the process was “open” because they held meetings to which all were invited[i].
· Critics of the Workgroups maintain that the process was not “open” because the vast majority of WSBA members have no idea of the content of the proposals, nor the reasons for or against.
The most intractable arguments are often those for which both sides have a point. Both the Workgroups and the Critics have their points.
Classic Openness: Top-Down Control
The Workgroups used a traditional version of “Openness” familiar to those of us who came of age before the internet. Small and dedicated Workgroups set hearings where they accepted oral and written messages that they may or may not have used to change the code. They invited every member of WSBA to the meetings, but few attended. Most WSBA members have day jobs that don’t allow time off for Bar meetings. Even among that fraction of members who have scheduling autonomy, attending bar meetings is an expensive loss of billable time and, given skepticism that attendance would make a difference, difficult to justify in terms of results. Also, the meetings were poorly publicized and the reasons for attending not publicized effectively[ii].
Some of the arguments for and against the proposals are secret. For example, the entire argument about antitrust risk was given in WSBA BOG Executive Session and so concealed from the membership to this day. Most of the rest of the argumentation is inaccessible because it was given orally or provided in a format not reasonably calculated to educate. For example, the motion to create the Sections Workgroup was only vaguely alluded to in BOG minutes and stated explicitly only on page 357 of inaccessible Meeting Materials[iii]. It is unlikely that anyone outside BOG or the Workgroups even knew where to look.
A small number of writers drafted the Proposals. The Proposals were kept private, or distributed modestly. The final product was not available until the last possible moment, a few days before a BOG meeting called suddenly in August.
This is what “Open” meant in the old model.
21st Century Openness: The Wisdom Of Crowds
Coding in the current era uses a different model of “openness”, empowering all parties to meaningfully contribute to debate, drafting, testing and bugfixing. Publication of interim products and written debate inviting large teams of stakeholders, using ubiquitous self-documenting media[iv] are the standard.
This model has advantages:
1. It enables and encourages debate from all interested parties, regardless of geographical or temporal limits. This collects the best ideas.
2. It lets everyone parse and ponder preliminary proposals, illuminating conflicts and defects. No Workgroup, however intelligent, can match the brainpower of 30,000+ WSBA members, even if each member devotes but a single hour in review and contribution.
3. It develops neatly structured arguments for and against, which promotes education of the proposals that emerge.
4. It develops buy-in to the final product, by enabling access to the proposals and arguments from start to finish. No-one will agree to everything in the result, but everyone can feel they had a voice.
Whether the Workgroup proposals are good or bad can not be determined without a review of them that is “open” in the 21st-century sense:
· Were the proposals made available in a timely manner for the legal professionals of the WSBA to review?
· Was debate in fact enabled and encouraged among all stakeholders ?
· Were structured arguments for and against crafted to promote understanding?
· Was buy-in created?
· Does the process appear open and legitimate to most stakeholders?
To each question, the evidence suggests the answer is “No. It’s nobody’s fault, but no”.
Debate, buy-in and legitimation depends on awareness. There is no evidence that the vast majority of WSBA members were aware of the need for or content of the Proposals during development, or even now that they have been presented to BOG.
Ask Any Lawyer: Recently hundreds of WSBA members have been asked for their opinion of the Proposals, through Section listserves. Few Members indicated awareness of the Proposals’ existence, much less their content. Regardless of the sincerity of efforts to raise awareness of the Proposals, the effect of these efforts is failure.
NWLawyer: NWLawyer is WSBA’s publication of record. It did not provide coverage reasonably calculated to inform the members. Its cover has never hinted that Bylaws changes are in the works and its interior coverage has been scanty at best.
Recently, proponents circulated a list of about a dozen NWLawyer references. Most of these are merely meeting announcements devoid of substance. Most of the other references are to a few vague paragraphs hidden within general purpose articles with uninformative titles, such as “President’s Corner”. The exceptions are a small number of substantive articles that presented summary statements, without the text of proposals or the arguments for or against, of limited parts of the proposals. None of them are cover stories or even mentioned on the cover.
WSBA.org: In the most recent issue of NWLawyers, there is a claim that “All” member comments were provided on the WSBA website[v]. This claim is puzzling. Searches of the website have not found the comments. The Bylaws Workgroup webpage on wsba.org was put up only in midsummer 2016, well past the bulk of the process. Few if any member comments are available on the website or, if they are, locating them is difficult.
References on the website to meetings are too vague to inform members as to the subject matter or why anyone should attend[vi]. Nor does WSBA blog or Facebook presence say anything significant.
Incoming Board Members: Proponents have argued that the proposals must be voted on in September 2016 because one-third of the Board members will thereafter rotate off, taking with them knowledge of the proposals. This proves the lack of openness in the process.
Incoming Board members are among the best-informed and most highly-motivated WSBA members. If this core group is not fully aware of the content and reasons for and against the Bylaws changes, then the process itself is not open even to them.
Putative Laziness of WSBA Members: Some Workgroup or BOG members have complained that any lack of awareness is the fault of WSBA Members who failed to attend meetings or to read the documents.[vii] If true, that is evidence that the process is not open, but rather structured (undoubtedly unintentionally because no-one is motivated to do it on purpose) so that the average WSBA member cannot participate.
One method that the Workgroups could use to engage WSBA Members is to submit texts to relevant subject matter Sections, just as is done in considering whether to comment on legislation. Many of the proposed changes appear to touch on Administrative Law, and yet there was no effort to ask the Administrative Law Section for advice. Likewise, the WSBA name change has been justified as a matter touching on Antitrust Law, and yet there was no inquiry to the Antitrust, Consumer Protection and Unfair Business Practices Section[viii]. Many of the changes directly affected WSBA Sections, and yet for most of the process Section Leadership was excluded until late in the game. The problem is not the fault of the Membership, nor necessarily that of the Workgroups, but of the structure of the work process itself.
Sidebar – Urgency: It has been argued that the Proposals are good and necessary because they are in support of urgent needs, in particular, closing the well-known Justice Gap[ix]. This is a non sequitur. Quality does not arise from urgency. To the contrary: the more important the code’s goal, the more important that it be written to the highest quality. Open review is essential to solving urgent, underfunded problems.
Sidebar - Court Power: Some appear to feel that openness doesn’t matter, because the Supreme Court can do whatever it likes with WSBA as part of regulating the practice of law. This would prove too much: BOG has been tasked with presenting the Court with the best possible proposals, not merely with proposals that have passed through a process. Openness in developing these proposals is all the more important when the Court relies on WSBA’s work.
The argument is also dangerous. Undoubtedly the Court can do just about whatever it wants to “admit, enroll, disbar, and discipline” plus closely related administrative functions. Fees are legitimate to fund this minimum set of functions. To go beyond them and to tax lawyers to fund other projects somewhat related to the practice of law is open to question.
As a practical matter, there is on the order of 30,000 lawyers subject to Court jurisdiction, and not enough wealth among us to fund closing a Justice Gap of $30 million and growing. There is a substantial injustice in requiring lawyers, and lawyers alone, to bear this burden instead of taxpayers at large. If the Court wishes to tax parties on the basis of their prosperity and relation to the legal system, law school foundations and the student loan industry may be a more appropriate source of funds.
Ultimately, there is a limit to the Court’s power to compel servitude of lawyers or to take their property even for the best of causes. Members of a professional association (whether authorized by the Legislature or simply an association protected by the First Amendment) are free to fund charitable causes through the democratic processes of its elected Board. To the extent that the WSBA molecule has elements of a First Amendment and/or Legislatively authorized professional association, it likewise has their powers to fund charity. In contrast, every element of government is limited, and as we are finding with great frustration in the realm of education, the Judiciary can not tax nor do things similar to taxing. Neither can WSBA to the extent that it is an element of the Court. To discover the dividing line between fees and taxes through a second Keller is probably not an effective way to close the Justice Gap.
Proposal: Crowdsource Open Review
BOG has an opportunity to use the present need for Bylaws revisions to create and to practice 21st century openness in WSBA governance.
The legal profession is conservative in its procedures. This is a virtue in its predictability, but in other ways a vice. In particular, it may have encouraged many of the problems in the current Workgroup experiment – again, not the fault of the Workgroups, but of the process.
Old habits die hard. Going from a traditional model of decision making to a 21st century model has challenged bigger enterprises than WSBA. However, history tells us that the outcome is always better when debate is real and encouraged, proposals are widely examined and criticized, the arguments for and against both presented, and buy-in is developed among the membership.
Grasping this opportunity depends on no particular opinion as to whether the Proposals are good or bad. Indeed, an informed opinion is not possible on this until the proposals have been openly reviewed and debated by WSBA’s many expert members.
The Proposals have just recently been made public, and the debate has begun. The first round of open code review, started only last week, has predictably revealed defects[x], as is typical at this stage of the process. In the normal course of review, more issues will surface, but it takes time. BOG should provide this time.
Relating each code change to the strategic goals justifying them is in a much less advanced state. Neither the financial analysis of their impact nor analysis of their projected effect on access to justice appears complete. Also, there is seen little would-be attempt to seek buy-in from stakeholders[xi] by involving them in the review process. BOG should encourage this, perhaps through Section liaisons and outreach to member districts.
It is natural for the writers of code changes to advocate for them, and perhaps to feel disappointment at criticism. This commentary is not intended to disparage their efforts, but it may be a hard read for them, and for that I apologize.
However, it is not best practice to rely solely upon the advocacy of a code change’s writers in deciding whether to adopt it. Until there is open and thorough review of the Proposals by WSBA’s Membership and perhaps other experts, BOG is not in a position to vote on them. To publish the proposals, and the arguments for and against each, in a format permitting a debate, and then to let the debate proceed for an extended period, may appear to be a radical concept in democracy and openness, but it is also a prudent exercise in BOG’s fiduciary duty to protect WSBA’s assets and goals.
Such wide open discussion may not be easy, because WSBA has not done it before; we are stuck in the old model. But other enterprises have succeeded at this. If Bylaws revisions are worth doing, then they are worth doing well. Crowdsourcing the code review can ultimately reduce the overall workload of the BOG and WSBA Staff while maximizing quality.
Let us therefore take this opportunity to move, stumblingly if necessary, into 21st century governance. BOG should execute a thoroughly open code review before making decisions on the Bylaws Proposals.
[i] Gipe (by way of Erickson), “Bylaws Work Group - Materials for 8/8/2016 Meeting/Highlights”, Section-Leaders listserve, Aug 16, 2016 11:36 AM.
[ii] See Bernheim, “RE: More on Openness in WSBA Governance”, Section-Leaders listserve, Aug 31, 2016, 2:19 PM.
[iii] Oddly, BOG minutes do not include the exact text of motions voted on. Therefore, it can be hard for future Boards, as well as Members and the Public, to figure out precisely what BOG has authorized. WSBA’s General Counsel stated in writing that it is not necessary to make a precise written record of motions passed. See McElroy, “Your March 5 2016 Email” reply crossposted Section-Leaders listserve Mar 11, 2016 6:22 AM. This may be a problem.
[iv] Typically the internet or an intranet, but sometimes a wiki and/or an email listserve with an accessible archive, or some newer technology.
[v] Hyslop, NWLawyer, September 2016, p 10.
[vi] Bernheim, supra.
[vii] Risenmay, “RE: Bylaw Changes”, Aug 16, 2016 7:23 PM, Crossposted to Section-Leaders listserve Aug 16, 2016 10:14 PM.
[viii] Noble, “?AntiTrust Litigation and Renaming/Repurposing WSBA?”, Section-Leaders listserve, August 11, 2016 3:16 pm.
[ix] Risenmay, supra.
[x] For example, See Simburg, “Definition of "Member" -- Technical Comments on Article III”, Section-Leaders listserve, Aug 17, 2016 2:23 PM; Edlund, “Draft Bylaws Article IX Comments”, Section-Leaders listserve, Sep 9, 2016 11:42AM.
[xi] Two front articles in September 2016 NWLawyer have just made their brief case for the Proposals as written. However, as we learned during the late Referendum debacle, Bar News articles, however sincerely intended, rarely create buy-in; that comes only from active engagement.