WSBA Board Authorizes Appellate Amicus Brief in Perkins Coie Litigation; Executive Committee to Oversee

The Washington State Bar Association Board of Governors voted to authorize filing an amicus brief at the appellate level in the litigation arising from the executive order affecting Perkins Coie LLP, and directed the Executive Committee to oversee preparation and sign the brief.

Lori Powers, general counsel, told governors that the board’s amicus policy and a confidential legal memo were circulated in advance and that the equity-and-justice analysis in the packet was not legal advice. She warned the group the board would move into executive session if discussion veered into legal-risk analysis.

The vote came after extended debate about whether to file at the trial-court stage or wait for an appeal. Powers said a temporary restraining order in the Perkins litigation was issued March 14 and that dispositive and related briefing deadlines in the trial court were scheduled in mid-April. She also noted the WSBA policy generally reserves amicus participation for appellate courts “absent exceptional circumstances.”

Governors who spoke largely favored filing at the appellate level rather than the trial court. “In the ordinary course, it would be like a year, but this is not the ordinary course,” Governor Ahern said, arguing the case could move rapidly on an emergency track through federal appeals. Governor Rathbone said she was opposed to filing at the trial level and preferred appellate action, while Governor Couch proposed authorizing the Executive Committee to begin work now so the association would be ready at the appellate stage.

Chief Disciplinary Counsel Doug Ende urged prompt action. “Now is not the time to temporize; now is a time to act,” he said, adding that he viewed the executive order at issue as a serious threat to the independence of the legal profession.

Powers briefed governors on resource implications and process limits in the WSBA amicus policy. The board’s materials estimate a cap of about $18,000 for outside counsel to prepare a brief on an expedited timetable if pro bono counsel cannot be secured. Powers said the policy normally calls for a period for member comment and section review, but that timeline would likely be impractical on an expedited schedule.

Governor Petrosyk moved to authorize filing an amicus brief at the appellate level consistent with the circulated memo; the motion was seconded and passed on roll call. As recorded in the meeting, governors voting in favor included Governor Price, Governor Villeneuve, Governor Bloom, Governor Rathbone, Governor Whitney, Governor Bang, Governor Dresden, Governor Couch, Governor Arneson, Governor Petrasic and Governor Wynne; one governor (Governor Faye) was not present for the vote. The board instructed that the Executive Committee would oversee drafting, consider outside or pro bono counsel, and that the board president or her designee would sign the brief.

After the vote the board said it would redact confidential portions of the memo and release the remainder to members. Powers explained that portions of the memo remain privileged because they discuss legal risk and liability.

Next steps include Executive Committee oversight to prepare the appellate brief, efforts to identify counsel within the stated budget or pro bono representation, and public release of a redacted memo explaining the board’s reasoning. The board recessed for lunch following the action.

(Reporting note: quotes and attributions are taken from the meeting transcript.)