LITIGATION SECTION

INTELLECTUAL PROPERTY LAW SECTION

CORPORATION, FINANCE AND SECURITIES LAW SECTION
INTERNATIONAL LAW SECTION
TAXATION SECTION
LABOR AND EMPLOYMENT LAW SECTION
ENVIRONMENT, ENERGY AND NATURAL RESOURCES SECTION
ADMINISTRATIVE LAW AND AGENCY PRACTICE SECTION
REAL ESTATE, HOUSING AND LAND USE SECTION
GOVERNMENT CONTRACTS AND LITIGATION SECTION
HEALTH LAW SECTION
ANTITRUST AND CONSUMER LAW SECTION
ESTATES, TRUSTS AND PROBATE LAW SECTION
CRIMINAL LAW AND INDIVIDUAL RIGHTS SECTION
ARTS, ENTERTAINMENT, MEDIA AND SPORTS LAW SECTION
FAMILY LAW SECTION
TORT LAW SECTION
DISTRICT OF COLUMBIA AFFAIRS SECTION
COURTS, LAWYERS AND ADMINISTRATION OF JUSTICE SECTION

DISTRICT OF COLUMBIA BAR

January 27, 2017

Board of Governors
District of Columbia Bar
1101 K Street NW, Suite 200
Washington DC 20005

RE: DC Bar Communities Proposal

Dear Members of the Board of Governors:

The undersigned sections of the District of Columbia Bar are writing to express their
opposition to the captioned proposal (the Proposal), including its plan to terminate all existing
Bar sections and committees. In view of the expedited schedule set for consideration of the
Proposal, and the significant harm we believe it will likely cause to the mission of the Bar and
the professional interests of its members, we request your response to the points raised below in
this letter before further action is taken to move forward on the Proposal.

(1) Opportunity for Notice and Comment. The first time the Bars section leaders
were told of the existence of the Proposal or even heard its term communities was on

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January 18, 2017, when Bar staff sent section leaders an email asking them to listen to a linked
web recording that orally described the Proposal in general terms. At the same time, section
leaders were told that the Proposal will be rushed to the Board of Governors (the BOG) for
approval in just a few weeks. This rushed approach, without providing details and a meaningful
opportunity for consultation on the Proposal, shows serious disrespect for the lawyers who are
the Bars members and who provide its financial and programming support. While Bar members
have elected their steering committee members to three-year terms, the Proposal would disregard
this electoral decision and, without consulting the electorate, prematurely terminate all elected
steering committee members in June.

At the very least, (i) there should be a detailed written memorandum describing the
Proposal, not simply a vague and repetitive audio recording; (ii) both the memorandum and this
letter should be circulated to all Bar members for review and consideration, perhaps including
publication in Washington Lawyer; (iii) comments should be available on the Bars website for a
sufficient period of time to allow review by all interested Bar members; (iv) an open forum
should then be held for Bar members to learn more about the Proposals details and to ask
questions directly of the proponents of the changes; (v) an open forum should then be held for
Bar members to engage directly with the BOG on the Proposal; and (vi) the Proposal should be
an item for discussion with the membership at the Bars annual meeting. And then finally,
whether formally required or not, a proposal of this importance should be put before the Bars
full membership for at least an advisory vote to inform the BOGs decision. The overall process
should be given sufficient time to assure full and responsible consideration by the Bars members
and the BOG. There is no reason that a decision must be hurriedly made within weeks, or even
months.

(2) No Case Made for Radical Change. Bar members have suggested various ways to
improve the sections operations. This has included a July 28, 2016 letter to the BOG from the
Corporation, Finance and Securities Law Section (CFSL) making concrete proposals to
improve program operations a letter that a number of other sections supported in separate
letters to the BOG, but which has to date received no substantive response. That letter
essentially repeated points that elected sections leaders had been making for many years without
adequate response or action by the Bar. Were all in agreement in wanting an environment that
promotes improvement for the Bar, including with respect to the sections. But a desire to
improve and streamline certain features of section operations doesnt justify scrapping the Bars
entire section and committee structure and replacing that structure with a new and untried
construct.

Even if a radical change were warranted, which it is not, this would not be the time for
such a change. There is a transition of Bar leadership underway, including the departure of the
Bars CEO and the COO. If the BOG approves the Proposal, it will likely tie the hands of new
leadership for years as it is difficult in any organization to reverse course on recent major
decisions. We should not tie the hands of new leadership by radical structural changes just as
they are walking in the door. Instead, we should let the new leaders settle in for an appropriate

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period of time, let them have an opportunity to fully assess the organization and its needs and
opportunities, and let them get to know and interact with section leaders and members. To the
extent they may have seen the Proposal, we and they should realize that the decisions these
newcomers make for the Bar today will likely not be the decisions they would make after a year
in their new positions.

(3) The Section Finance Argument. The principal reason advanced so far for making
the Proposals radical change to the Bars structure is apparently that the existing sections will
supposedly soon become insolvent. This is puzzling, as the DC Bars larger sections appear to
run a surplus most years. The Proposal claims that the sections financial needs cannot be
satisfied by raising section dues above $55, where they have been needlessly frozen for several
years. Yet at the same time, the Proposal inconsistently says that section members are not dues-
price-sensitive, and the Proposal actually plans to charge $79, an increase of $24 above the
current $55 section dues, for Bar members to join the Proposals new communities.
Additionally, the Proposal will inevitably increase costs by the expenditures needed simply to
create its new communities structure, as well as by its plan to expand staff responsibility over
the new communities finances and management. Finally, the Proposal is unclear regarding how
revenues generated by programs and publications would be handled whether communities
would continue to have their own budgets.

Instead of creating a new structure, simply increasing the dues of the Bars existing
sections from $55 to $79 would more than assure the solvency of all existing sections well into
the foreseeable future, although this decision should not be made unilaterally but only after
consideration through the sections. Indeed an increase in section dues to a level well short of
$79 would probably be sufficient. This is particularly the case if programming operations can be
streamlined, as suggested in CFSLs July 2016 letter, so that the cost of running the Sections
Office can be reduced by eliminating needless staff activities that actually hinder and delay
programming as discussed in that letter. If as the Proposal suggests, we want to add some free
CLE as a sweetener for those who need CLE for bars other than DC, such free CLE can be added
to our existing section structure, as can a dues reduction for joining a second or third section.
The case has not been made that the proposed non-democratically-elected communities would be
more cost effective than the present sections.

Finally, the details of the Proposals finance argument require considerably more
scrutiny, evaluation and broad discussion among section members before we risk our Bars
future health on this argument. Thus, without meaningful and thorough analysis, the Proposals
optimistic scenarios appear to project annual losses in the early years through mid-2019, even
with membership increases, and then either (i) continued losses through mid-2022, or (ii) some
recovery in later years if the Bar can manage to achieve annual membership increases of 5% or
more. On the other hand, the Proposal offers no analysis of the impact if the current slow decline
in membership continues, or if that decline actually increases due to operational and other
problems with the Proposals new communities structure and its proposed 44% increase in
communities dues over current sections dues. The Proposal needs to include analysis of

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potential results under less optimistic scenarios, as well as an explanation of the growth of
Sections Office expenses, the other side of the finance equation. The Proposal offers, at most,
mere speculation that it can achieve a more robust, sustainable fiscal outlook. Yet if it fails to
improve the current financial trend, or makes it worse, years will be lost as its consequences play
out. Recall the Dues Stabilization Fund approach adopted four years ago that froze section dues
increases, and now with resulting depletion of section financial reserves, the Proposal tells us to
hike dues 44% for the new communities. Before jumping to a new, and far more radical
approach, we need thorough analysis accompanied by full transparency in the evaluation process
to make sound judgments for our Bars future.

(4) A High Risk Approach. Bars around the country have long had sections and
committees the ABA, the Federal Bar Association, the New York City Bar Association, and
many others. Has any other bar replaced their sections with communities? In the bar context,
we are given no examples of how this communities structure has worked, if its been tried at all.
Even if other kinds of membership organizations have done this, it does not mean it will satisfy
the particular needs of lawyers in the nations capital. The DC Bar is in competition with
national bar associations, specialty bar associations, regional bars, and commercial CLE and
other panel providers competition both for panel presenters and panel audiences.1 If the DC
Bar is to avoid decline in this competitive environment, it has to satisfy real and long-understood
needs of lawyers.

Instead of a tried-and-true formula that has long worked for bar associations, the webinar
emailed to section leaders on January 18, 2017 offers a complex, vague and bureaucratic vision.
The Proposal leaves much to be reinvented indeed, much of what is now managed well by our
present sections and their section standing committees. To provide just one example, the
Proposal does not explain how its communities would deal with public statements the only
way DC Bar members can express the professions views on topics where their voice is
especially useful, such as DC and federal legislation, court rules and administrative regulations.
The Bar itself is restricted in its ability to engage in any such advocacy, thus making the
sections opportunity to speak especially crucial.

Apart from the obvious point that the Proposal will likely not produce an organization
that can compete for lawyer attention and dollars, there is a real question whether the Bar,
despite best intentions, will even be able to execute what is so vaguely conceived. Many of the
Bars larger sections have for years unsuccessfully sought list serves to be able to communicate
directly with their members on even a basic level and thereby to draw their section members
into more active participation in section program and committee work but the Bar has failed to
deliver even on something that is very simple from a technology standpoint. New technology
will not suddenly reverse this past frustrating experience.

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In particular, the ABA and the Federal Bar Association run programs that attract DC Bar members. If DC Bar
members stop seeing value in communities altogether, they will simply drop membership, pay the basic dues, and
obtain their program needs through other sources.

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 If DC Bar members sense disorganization at the programming level, they will stop
enrolling in either sections or communities the label wont matter. These concerns, especially
the risk that the Bar is embarking on an untried course, require that the Proposal be fully aired
with the members the Bar serves before it is considered for implementation.

(5) No Meaningful Transition. The Proposal terminates all DC Bar sections in June,
and fires all present section and committee leaders. The Proposal then starts from scratch with
an entirely new structure that lacks any leadership at all. This is like starting a whole new bar
association. Such a hard-stop-and-rebuild approach frustrates any attempt at continuity of
programs, leadership and relationships. And if present section and committee leaders do not
reapply for the new leadership positions the Proposal contemplates or if they do apply, but are
not recommended to the BOG by Bar staff the DC Bar will have lost an important connection
to its members, as well as much of the talent pool that currently manages to produce excellent,
top quality programs for the Bar. A drop in quality programming, vital to most of our sections as
their principal value-added offering, will naturally and inevitably result in declining membership
and revenue that could take years to rebuild.

(6) Governance Concerns. The Bar is an organization formed by lawyers, composed of

lawyers, and financially and substantively supported by lawyers. Each year, these lawyers elect
the members of their respective sections steering committees, based on the professional
credentials and platforms the candidates offer, to preside over and operate their sections for the
coming year. These elected steering committee members, in turn, elect their section officers and
their sections standing committee leaders for the year. These elected lawyers then run their
sections by organizing professional programs, and engaging in the general administrative tasks
necessary for the functioning of the sections. Elected steering committee members focused on a
specific section are able to focus, coordinate and nurture the practice-specific work of their
particular section, including the work of the sections standing committees (over ten in larger
sections). Additionally, the present section model allows the sections, through their elected
leaders, to provide focused legal policy advice, counsel and advocacy to the DC Council,
Council members, agencies and others, as appropriate.

For many years this fundamentally democratic governance model lawyers electing
lawyers to govern a lawyers organization has worked well. The only exception has been with
respect to the particular issues raised in CFSLs July 2016 letter, which outlined certain aspects
where the elected lawyers in the section steering committees needed to be given more discretion
and relief from certain well-intentioned but counterproductive measures taken in recent years by
Bar staff. The steps outlined in CFSLs letter now need to be implemented promptly, as we
section leaders have been waiting for action on CFSLs letter for over six months.

Lawyers have created and continue to provide the support to maintain this Bar, and the
lawyers they elect to run their sections must retain the authority to enable them to do so. The
Proposal misses this point entirely by proposing to rip governance from the hands of elected
lawyers and transfer governance to unelected Bar staff, many of whom are non-lawyers and not

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Bar members. The Proposal takes all administrative and financial decision making away from
the lawyers who have been elected to lead its sections, and turns this authority over to the
unelected Bar staff. And it further eliminates the election process and instead empowers the Bar
staff to identify and recommend candidates for leadership of the Proposals new communities,
effectively the new name for the sections. Any such change in the involvement by lawyers in
their legal organization should not be considered without serious and informed dialogue with and
input on the Proposal from the lawyers whom the Bar serves, and who serve the Bar.

* * *

The risk of this Proposal is great, and the prospective benefits questionable. Certainly
such a drastic change should not be undertaken without careful education of and consideration by
the Bars membership. Without open, democratic buy-in by Bar membership, especially those
volunteers who have for years worked hard on behalf of the Bar, this Proposal will not succeed.

For the reasons above, we oppose the rush to act on the Proposal. We urge you to
suspend further consideration of the Proposal until the due process steps described above can be
taken to ensure informed consideration by the Bars members. We respectfully await your
response.

LITIGATION SECTION
Julia M. Jordan, Co-Chair (jordanjm@sullcrom.com)
Kevin M. Clark, Co-Chair (kevin.michael.clark@gmail.com)

INTELLECTUAL PROPERTY LAW SECTION

Kenie Ho, Co-Chair (kenie.ho@finnegan.com)
Benjamin Huh, Co-Chair (benhuhlaw@gmail.com)

CORPORATION, FINANCE AND SECURITIES LAW SECTION

Joan E. McKown, Co-Chair (jemckown@jonesday.com)
Stephen J. Crimmins, Co-Chair (stephen.crimmins@mmlawus.com)

INTERNATIONAL LAW SECTION

Stephen Claeys, Co-Chair (claeys.stephen@gmail.com)
Mary Ann McGrail, Co-Chair (lawofficeofmamcgrail@gmail.com)

TAXATION SECTION
Layla J. Asali, Chair (lasali@milchev.com)
Michael Caballero, Vice Chair (mjcaballero@cov.com)

LABOR AND EMPLOYMENT LAW SECTION

Keith D. Greenberg, Co-Chair (kdgreenberg@laborarbitration.com)
Edgar F. Ndjatou, Co-Chair (endjatou@mnlawyerspllc.com)

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ENVIRONMENT, ENERGY & NATURAL RESOURCES SECTION
Linda Tsang, Co-Chair (ltsang@alum.mit.edu)
Justin Smith, Co-Chair (rjustin@gmail.com)

ADMINISTRATIVE LAW AND AGENCY PRACTICE SECTION

Judith R. Starr, Co-Chair (starr.judith@pbgc.gov)
Matthew R. Oakes, Co-Chair (oakes.matt1@gmail.com)

REAL ESTATE, HOUSING AND LAND USE SECTION

June L. Marshall, Co-Chair (june.marshall@hklaw.com)
Brian W. Thompson, Co-Chair (bwthompson@jackscamp.com)

GOVERNMENT CONTRACTS AND LITIGATION SECTION

Lisa Martin, Co-Chair (lmartin@uspsoig.gov)
Joseph P. Hornyak, Co-Chair (joe.hornyak@hklaw.com)

HEALTH LAW SECTION

Julia Tamulis, Co-Chair (jtamulis@bassberry.com)
Amy E. Nordeng, Co-Chair (amyn@astro.org)

ANTITRUST AND CONSUMER LAW SECTION

Robert E. Hauberg, Jr., Co-Chair (rhauberg@bakerdonelson.com)
Daniel P. Ducore, Co-Chair (dducore@ftc.gov)

ESTATES, TRUSTS AND PROBATE LAW SECTION

Jennifer C. Concino, Co-Chair (jcconcino@tobinoconnor.com)
Giannina Lynn, Co-Chair (gina@ginalynnlaw.com)

CRIMINAL LAW AND INDIVIDUAL RIGHTS SECTION

Heather N. Pinckney, Co-Chair (hardenpinckney@gmail.com)
Brandi J. Harden, Co-Chair (hardenpinckney@gmail.com)

ARTS, ENTERTAINMENT, MEDIA & SPORTS LAW SECTION

Micah Ratner, Co-Chair (mratner@npr.org)
Alison B. Schary, Co-Chair (alisonchary@dwt.com)

FAMILY LAW SECTION

Stephanie Troyer, Co-Chair (stroyer@legalaiddc.org)
Christopher M. Locey, Co-Chair (clocey@ksfmlaw.com)

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TORT LAW SECTION
Daniel Scialpi, Chair (dscialpi@patrickmalonelaw.com)
Nicholas S. McConnell, Vice Chair (nmcconnell@jackscamp.com)

DISTRICT OF COLUMBIA AFFAIRS SECTION

Janene Jackson, Co-Chair (janene.jackson@hklaw.com)
Esther Bushman, Co-Chair (esther.bushman@dc.gov)

COURTS, LAWYERS & ADMIN. OF JUSTICE SECTION

Susan D. Bennett, Co-Chair (sbennet@wcl.american.edu)
David Steib, Co-Chair (david@ayuda.com)