Graham v. Bar Association , 86 Wash. 2d 624 ( 1976 )

Utter, J.

Certiorari was granted by this court to review an order quashing a subpoena duces tecum sought by the State Auditor, petitioner herein, as part of his effort to obtain records with which he could conduct a postaudit of the respondent Washington State Bar Association. The trial court concluded the applicable statutes authorized petitioner to conduct the audit but that he was prohibited from doing so by the separation of powers doctrine. We hold the bar association is not a state agency or state department within the meaning of the applicable statutes, that only excess receipts from the admission fund for new lawyers are subject to postaudit and that the doctrine of separation of powers forbids the exercise by the state legislature of the power to audit funds collected by the bar.

In August 1969, petitioner conducted a postaudit of respondent. No legal challenge was made to this audit and a report was issued in March 1970. In November 1974, a second postaudit was attempted. On this occasion, however, respondent refused access to all records except those relating to the “admission to the bar examination fund.” Faced with the bar’s refusal to produce the desired books and papers, the Auditor sought issuance of a subpoena as provided by RCW 43.09.330. The trial court’s refusal to issue the subpoena raises the legal issues now before this court.

The Washington State Auditor is a member of the executive branch of government and has only such powers as are conferred by the legislature. He is the “auditor of public accounts, and shall have such powers and perform such duties in connection therewith as may be prescribed by law.” Const, art. 3, § 20. These provisions confer no constitutional or implied powers. The office possesses no powers other than statutory powers specifically granted. Yelle v. Bishop, 55 Wn.2d 286, 297, 347 P.2d 1081 (1959).

Statutory authority for the postaudit is claimed by the Auditor under the language of RCW 43.09.290 and 43.88.160(3) which specify those organizations subject to a postaudit. RCW 43.09.290 defines “state department” as “every other office, officer, department, board, council, committee, commission, authority, or agency of the state government . . . supported, wholly or in part ... by the levy, assessment, collection, or receipt of fines, penalties, fees, licenses ... or other income provided by law . . .” Under the 1959 budget and accounting act, the Auditor also is empowered to “examine the books and accounts of any agency, [or] official . . . charged with the receipt, custody or safekeeping of public funds.” RCW 43.88.160(3) (a). The Auditor is likewise directed to “[r]eport to the legislature the results of current post audits that have been made of the financial transactions of each agency . . .” RCW 43.88.160 (3) (a). “Agency” is defined in part as a “board” and “public funds” in part as “all moneys . . . whether held in trust or for operating purposes and collected or disbursed under law, whether or not such funds are otherwise subject to legislative appropriation.” RCW 43.88.020 (4) and (5).

The critical inquiry is whether the bar association is a “state department” or “agency” within the meaning of the statutes. Petitioner treats as determinative the characterization of the Washington State Bar Association as “an agency of the state” in the State Bar Act of 1933, RCW 2.48.010 et seq. However, it is inconceivable that the legislature in 1933 intended this reference, in itself, to sanction an audit of that organization since the auditing statutes were adopted only in 1941 and succeeding years. Moreover, the legislature has given the term “agency” a variety of meanings. See, e.g., RCW 42.17.020, 42.18.030, 42.30.020, 43.17.120-.200. In State ex rel. Tattersall v. Yelle, 52 Wn.2d 856, 863, 329 P.2d 841 (1958), this court noted that the term “state officer” is used in several different ways in the constitution and hence its meaning “may vary according to the context in which it is used.” Similarly, the meaning of the term “agency” depends on its context. Thus, the reference to the bar association as “an agency of the state” in the State Bar Act of 1933 does not control the applicability of the auditing statutes to that organization.

This conclusion is further supported by the legislative history of the State Bar Act, RCW 2.48. The Washington State Bar Association existed as a voluntary professional association between 1888 and 1933. Admission and discipline of attorneys was administered by the Supreme Court or a board of state bar examiners during that time. In 1933, the Washington State Bar Act was adopted by the legislature. The committee of the bar created to investigate their incorporation reported “[i]n view of the fact that our state constitution prohibits the creation of corporations by special act [Const, art. 12, § 1; art. 2, § 28] and inasmuch as our courts have not yet passed upon the question of whether or not public corporations are excepted from this provision, the Act submitted was drafted so as to avoid any question on this score and provides for the creation of the Bar as an association only and as a state agency.” Thus, the description “agency of the state” was included in the act for limited purposes not affecting the scope of the auditing statutes.

The determination of whether the Washington State Bar Association is included within the terms of the act requires ascertainment of legislative intent. The intent of lawmakers must be abstracted from a consideration of all the provisions of an act and the court may not place a narrow, literal, and technical construction upon a part only of a statute and ignore other relevant parts. State v. Rinkes, 49 Wn.2d 664, 667, 306 P.2d 205 (1957). The language of a statute must be read in context with the entire statute and construed in a manner consistent with the general purpose of the statute. Nationwide Papers, Inc. v. Northwest Egg Sales, Inc., 69 Wn.2d 72, 76, 416 P.2d 687 (1966).

The Attorney General disclaims authority on the part of the state to conduct a performance audit of the Washington State Bar Association. A performance audit as defined in RCW 43.88.160(3) is an examination of the effectiveness of the administration, its efficiency and its adequacy in terms of the programs of agencies as previously approved by the legislature. Its purpose is to determine whether the affected agency or state officer has discharged his responsibility to faithfully, efficiently, and effectively administer any legislative purpose of this state. See RCW 44.28.085. The authority and responsibility to conduct such an examination is vested in the legislative budget committee as provided by RCW 44.28.085. That statute authorizes the legislative budget committee to make management surveys and program reviews as to every public body, officer, or employee subject to the provisions of RCW 43.09.290 through RCW 43.09.340, the postaudit statutes. The committee receives copies of all postaudits conducted by the State Auditor from which appropriate recommendations may be made to the legislature. RCW 44.28.085. Consequently, those agencies and accounts subject to performance audits, as well as management survey and program reviews, are by definition the same agencies and accounts which are also subject to postaudits. (While postaudits may be conducted also under the authority of RCW 43.88, the definitions in RCW 43.09.290-.340 are at least coextensive with, if not more inclusive than, the definitions in RCW 43.88.) Therefore, to exclude an organization from a performance audit is to exclude it from postaudit as well.

It is apparent why the Attorney General disclaims the authority of petitioner to conduct a performance audit of the Washington State Bar Association. That association is responsible to the Supreme Court, not the legislature or an agency of the executive branch, for the delineation of its responsibilities in the admission, discipline, and enrollment of lawyers. In re Bruen, 102 Wash. 472, 172 P. 1152 (1918); In re Schatz, 80 Wn.2d 604, 497 P.2d 153 (1972). With respect to the organization’s other programs, it is the Board of Governors, elected by the bar association members, not the legislature, that determines what activities it will engage in. If these programs are not efficiently and adequately managed, the membership can select new board members. There are no legislative standards established for the exercise of discretion' in the expenditure of funds by the Board of Governors of the bar. Complete discretion is conferred on the board in the collection and disbursement of all association funds. RCW 2.48.050(5) and (7).¹ These funds are expended for a variety of purposes, not the subject of legislative concern, the sole aim of which is improvement in the quality of the practice of law.²

The funds needed for operation of the bar association are not provided by legislative appropriation. In two areas, a $2 annual membership fee for inactive members (RCW 2.48.140) and the admission fee of $25 for new attorneys and $50 for those previously admitted in another jurisdiction (RCW 2.48.150), the legislature has expressly sanctioned collection of money from state bar members. Annual dues are collected under the authority of this court, and the existence of a separate statute authorizing the bar to collect the fees does not diminish this court’s basic authority to authorize the collection of such dues. State ex rel. Schwab v. State Bar Ass’n, 80 Wn.2d 266, 269-71, 493 P.2d 1237 (1972). All other income is obtained either from orders of the Supreme Court authorizing bar examination and investigation fees, costs in disciplinary actions, or voluntary payments by association members for bar-sponsored programs. See APR 2, 3; DRA 7.1, 7.2,11.4.

The traditional purposes for postaudits are not served by an audit of respondent. Postaudits are performed to detect “malfeasance, misfeasance, or nonfeasance in office . . .”

RCW 43.09.330. The complete discretion given the Board of Governors in the performance of its duties, outside the areas of admission to the bar and discipline where it acts only in aid to the Supreme Court, leaves the Auditor with no standards to determine whether malfeasance, misfeasance, or nonfeasance have occurred. Therefore, since the purpose of the examination is not served by a postaudit of respondent, we conclude that the legislature did not intend such an extension of the pertinent statutes. Moreover, if the performance audit procedures are inapplicable to respondent, it must be concluded that the postaudit statutes, which employ the same definitions, are inapplicable as well.

The reluctance of respondent to permit the State Auditor to perform a postaudit of its books does not mean it wishes its records to remain closed to any scrutiny. Annual audits of the association’s receipts and expenditures have been performed by private certified accountants. The results of these audits have been made known to the members of the bar and the records made available to any who wish to see them. This procedure is in accordance with that followed in many other state bar associations, and the most recent American bar to be integrated has specifically provided for audit by certified public accountants. In re Unified Bar,......Mont......, 530 P.2d 765, 771 (1975). Respondent further expressly recognizes in its brief that “it is, at least in part, an arm of this court and will at once submit to any audit the court deems reasonable and necessary.” Respondent also has agreed to submit to postaudit those funds it receives as a result of its activities in admitting members to the bar. RCW 2.48.150 requires excess receipts in that fund to be paid to the State Treasurer. The agreement of the association to an audit of the fund to determine whether the proper balances have been remitted, however, is done without waiving its right to object to a postaudit by the Auditor of its other activities.

There is yet another ground that renders petitioner’s attempted audit inappropriate. We have earlier made clear that the regulation of the practice of law in this state is within the inherent power of this court. This is the holding of the vast majority of courts in this country that have considered this issue. See, e.g., Application of Kaufman, 69 Idaho 297, 302-03, 206 P.2d 528 (1949); In re Patton, 86 N.M. 52, 54, 519 P.2d 288 (1974); Public Serv. Comm’n v. Hahn Transp., Inc., 253 Md. 571, 253 A.2d 845 (1969).

In State ex rel. Schwab v. State Bar Ass’n, 80 Wn.2d 266, 269, 493 P.2d 1237 (1972), we stated that “this court does not share the power of discipline, disbarment, suspension or reinstatement with either the legislature or the state bar association. The ultimate constitutional power clearly lies within the sole jurisdiction of the Supreme Court” and further that “membership in the state bar association and authorization to continue in the practice of law coexist under the aegis of one authority, the Supreme Court.” We also there established that in spite of the language in the State Bar Act, the association was not an “agency of government” so as to be one of the “state executive offices” required by State ex rel. Lemon v. Langlie, 45 Wn.2d 82, 273 P.2d 464 (1954) to move their principal place of business to the seat of government. The bar association, we recognized, is an association that is sui generis, many of whose important functions are directly related to and in aid of the judicial branch of government. State ex rel. Schwab v. State Bar Ass’n, supra at 272.

We have subsequently reaffirmed the fact that the source of the court’s power to admit, enroll, disbar, and discipline is exclusively in the Supreme Court as one of its inherent powers. In re Schatz, supra at 607. State v. Cook, 84 Wn.2d 342, 345, 525 P.2d 761 (1974). This conclusion is bolstered by the fact that in many states the integration of the state bar has been accomplished by order of the Supreme Court of that state, without the necessity of legislative action. By 1971 eight states had integrated their bars by a Supreme Court rule acting under the inherent power to regulate the practice of law, and by necessary inference, the conduct and activities of the bar as an entity. Hourihan, The Unified Bar, 38 D.C. B.J. 25, 27 (1971). Nothing in our constitution prohibits this court from the exercise of its inherent power in this manner as well. It was not necessary, therefore, for the legislature to act to accomplish the purposes achieved by the 1933 legislation. The power to accomplish the integration of the bar, its supervision and regulation is found first in this court, not the legislature. The legislature’s characterization of the bar as an “agency of the state” does not deprive this court of its right of control of the bar and its functions as a separate, independent branch of government.

In Sharood v. Hatfield, 296 Minn. 416, 210 N.W.2d 275 (1973), the Minnesota legislature passed a statute which diverted the registration fees to practice law, provided for by court order, into the general revenue fund of the state and left to legislative discretion the matter of an appropriation to the supreme court for the purpose of regulating the practice of law. The court rejected this attempted assertion of power by the legislature, holding these provisions regulating the practice of law a constitutionally impermissible assumption of judicial power. It noted that the doctrine of separation of powers “ ‘not only prevents an assumption by either department of power not properly belonging to it, but also prohibits the imposition, by one, of any duty upon either of the others not within the scope of its jurisdiction . . .’ ” Sharood v. Hatfield, supra at 423. The court recognized that it had acquiesced in legislative acts describing administrative procedures for admission and discipline of attorneys as long as such acts did not usurp the right of the court to make the final decision. It cautioned, however, at page 424, that “when the legislature attempts to go beyond merely indicating what it deems to be desirable, we have not hesitated to strike down such acts as unconstitutional.” The court concluded, at page 425, that the regulation of the practice of law and “ ‘the power to make the necessary rules and regulations governing the bar was intended to be vested exclusively in the supreme court, free from the dangers of encroachment either by the legislative or executive branches.’ ” It noted that where the bar was integrated by court rule, the court had the authority to “provide by rule for the raising of funds from the members of the legal profession and the expenditure of such funds for regulating the profession without legislative authorization or participation.” Sharood v. Hatfield, supra at 426.

We believe the legislature did not intend to extend its audit functions to the Washington State Bar Association and that the Auditor has mistaken his legislative mandate. In light of the principles set forth above, however, even if it was the intent of the legislature to so extend its powers, such an attempt is an unwarranted and unconstitutional interference with the power of this separate branch of government to make necessary rules and regulations governing the conduct of the bar.

Judgment affirmed.

Stafford, C.J., and Hunter, Hamilton, Brachtenbach, and Horowitz, JJ., concur.

1 RCW 2.48.050:

“The said board of governors shall have power, in its discretion, from time to time to adopt rules

“(5) concerning the collection, the deposit and the disbursement of the membership and admission fees, penalties, and all other funds; and

“(7) providing for all other matters, whether similar to the foregoing or not, affecting in any way whatsoever, the organization and functioning of the state bar. Any such rule may be modified, or rescinded, or a new rule adopted, by a vote of the active members under rules to be prescribed by the board of governors.”

2 An affidavit submitted by respondent states in part:

“Income received by the Bar Association is disbursed for the following purposes, functions, services and responsibilities:

“1. The Bar News 2. Committees* 3. Rent 4. Clients Security Fund 5. Conferences & Meetings 6. Telephone 7. Postage 8. Office Supplies 9. The Disciplinary Program 10. Office Equipment 11. Public Affairs 12. Lawyer Referral Service 13. Printing 14. Local Bar Presidents 15. Public Relations 16. Membership mailings 17. Sections** 18. Headquarters Improvements 19. Appropriations*** 20. Insurance 21. Audit 22. Legal Intern Program 23. Office Equipment Maintenance 24. Library 25. Board of Elections 26. Bar Examinations and Admissions Program 27. Continuing Legal Education Program 28. Annual Meeting 29. Lawyer Placement Program 30. Judicial Plebescites & Polls 31. Staff salaries

“«Committees — The Bar Association has the following Committees: Bar-Bench-Press, Certification of Specialists, Civil Rights, Clients Security Fund, Contemporary Problems and Public Interest, Corrections, Court Rules and Procedures, Courts and Judicial Selection, Editorial Advisory Board, Freedom Under Law, Group and Prepaid Legal Services, International Law, Interprofessional, Legal Aid, Legal Education Liaison, Legal Services to the Armed Forces, Law Office Practice, Code of Professional Responsibility, Public Relations, Resolutions, Travel, Unauthorized Practice of Law, Disciplinary Board, Local Administrative & Trial Committees, Legal Internship, Special Task Force on the Criminal Code, Special Task Force on 276, Statute Law Committee, Legislative, Task Force on Professional Utilization, Board of Bar Examiners and Continuing Legal Education.

“*«Sections — -The following Sections operate within the Bar Association — Administrative Law, Anti-Trust, Corporation, Business & Banking, Creditor-Debtor, Criminal Law, Environmental Law, Family Law, Intellectual & Industrial Property, Real Property, Probate and Trust, Taxation, Trial Practice and Young Lawyers.

“***Appropriations — These include appropriations for a Law Focused Education Program in the Public Schools, Legal Aid for McNeil Penitentiary, the Public Defender Survey and the Jail Standards Study.”