December 2003

Letters to the Editor

Does the Client Protection Fund do so?

I am writing this letter to call attention to a bad decision of the Client Protection Committee that, in my opinion, hurts the reputation of all lawyers.
 
A client came to me for help after she had been ripped off by her previous attorney in 1999. She was a "little person" with serious health problems who was working as a self-employed housekeeper. She spoke little English. She had come to this country from Central America where she had suffered through horrible events.
 
The prior attorney repeatedly charged clients for utterly useless immigration applications of a particular type called an "application for cancellation of removal." In this case, the prior attorney prepared the exact same type of useless application. The utter futility of this application would have been apparent to anyone who read the standard instructions on the application form. In 2001, the WBSA disbarred the attorney for this conduct.
 
The annual report of the Client Protection Committee states that "where it appears there is a pattern of conduct which establishes that a lawyer knew or should have known at the time the lawyer accepted fees from a client that the lawyer would be unable to perform the service for which he or she was employed, the Committee has concluded that such conduct is dishonest and will consider such applications."
 
Here, the attorney had actually been disbarred for engaging in identical conduct on at least two prior occasions. With full knowledge of all these facts, the Committee nevertheless chose to consider this "malpractice" and deny the claim.
 
This was a bad decision. It's wrong to call this "malpractice." To the public, it looks like the Bar is condoning dishonest behavior.
 
In this case, the fee that was stolen was only a few hundred dollars. I don't care. A few hundred dollars means more when you have to earn it on your knees scrubbing other people's floors and toilets. Given the particular vulnerability of the victim here, the very name "Client Protection Committee" is starting to sound like a bad joke.

Michael T. Purcell
Portland

WSBA General Counsel Robert Welden responds:

Michael T. Purcell writes a thoughtful letter concerning an application to the Lawyers' Fund for Client Protection by one of his clients. His letter points out the difficulty the Lawyers' Fund for Client Protection Committee faces in attempting to determine whether applications qualify for gifts from the fund.
 
To qualify for payment, an applicant must have suffered a pecuniary loss "by reason of the dishonesty of, or failure to account for money or property entrusted to, any member of the WSBA in connection with the member's practice of law or while acting as a fiduciary in a matter related to the member's practice of law." APR 15. Unfortunately for persons such as Mr. Purcell's client, incompetence and negligence do not constitute dishonesty under this rule.
 
The fact is that most of the claims that the Lawyers' Fund for Client Protection Committee denies are fee disputes or malpractice claims. Generally, this leaves the client with no remedy because the lawyer is uninsured, and the client's loss is so relatively small that it is impractical to seek a remedy in the courts.
 
For more than 40 years, the Bar has provided, through the Lawyers' Fund for Client Protection, a protection for clients who are victims of dishonest lawyers. It may be time to consider how we can act to protect vulnerable clients from irresponsible and incompetent lawyers as well.

Parking hell (cont.)

I read Tom Stahl's letter, detailing his views regarding the irregularities of traffic court as compared to other courts of record, with interest. In situations where a prosecutor fails to appear in a traffic case, Mr. Stahl notes: "When prosecutors fail to appear in traffic court, which they do most of the time with parking tickets, the judges often take it upon themselves to try the prosecutor's case for him. They read the police report into the record to make out a prima facie case for the government, or they put the police officer on the witness stand and then perform direct examination of him to establish the required elements of the government's case."
 
Although Mr. Stahl does a good job of pointing out several reasons that this practice is questionable, I believe he missed the most important point—it would appear to be unlawful. RCW 2.48.200 clearly states, in part: "No person shall practice law who holds a commission as judge in any court of record." Is a judge who performs direct examination of a witness or who otherwise tries an absent prosecutor's case in the manner described by Mr. Stahl actually engaged in the practice of law? If you are in doubt, ask yourself one question: If an unlicensed citizen were to try the case on behalf of the government in the place of the absent prosecutor, would this constitute the unauthorized practice of law? Most certainly it would.
 
The reason for RCW 2.48.200, I believe, is to maintain the integrity of the proceedings and to avoid exactly the kind of conflict of interest outlined by Mr. Stahl. Judges should not act in the place of prosecutors, not only because it is improper and skews the balance of power in our legal system, but because the law of this state, as I read it, prohibits such activity. By logical extension, if the activity described is prohibited by law, this should merit the close attention and scrutiny of our Bar in terms of the RPC.

Christopher J.K. Porter
Olympia

My most recent brush with traffic court consisted of a judge making a face at me when I maintained that a parking meter was mismarked. When I took the matter to another traffic judge, the second mentioned what promise the first was showing, increased the fine, and acted as if he was granting me a huge favor.

A. Stevens Quigley
Seattle

Cumbow on language, pro and con

Thank you for the exhilirating article on the annoying little oddities of the English language ("Pet Peeves," September 2003) . . . no, really. I clip these articles and save them so that I (hopefully) will write with more clarity and precision.
 
I would like to know if Mr. Cumbow would be willing to explain to me how to correctly use the phrase, "begging the question." I know that it does not literally mean to cause one to ask the question, but other than that I am lost.
 
Thank you very much. I hope to see more such articles in the future.

Michael DeWitt
Olympia

Webster's New International Dictionary (1930 Revision), p. 498, defines "Copyright" as "v.t. To secure a copyright on." Accord: II Oxford English Dictionary, C, p. 980 (1933); 2 Century Dictionary and Cyclopedia, C, (1913), p. 1258.

Jorgen Bader
Seattle

Bar News readers have expressed remarkable interest in Robert Cumbow's columns, which will continue to appear quarterly. —Editor

Public BOG members: The idea does too much and too little

I often hear lawyer jokes and am struck by the irony that, as we increase public input to the Bar Association, we still fall short of convincing the public as to our competence and honesty as professionals. We are, as Dick Manning says, a quasi-public entity, yet the funds for the Bar come from our professional dues. We pay to police ourselves, to aid clients who have been betrayed by dishonest lawyers, to fund CLEs, and to counsel troubled attorneys. We do little to benefit ourselves directly and much so that we can do a better job for others and we pay for it all ourselves. Is it too much, then, that when we seek in so many ways to include the public interest, we have one group that understands our own needs from that special perspective that legal training provides? Or shall we assume that simply being a lawyer confers some taint of self-contemplation that blinds us to the wider view? I suggest that we have barely scratched the true diversity and strength within the Bar Association members ourselves, and that to turn outside for a corrective is to abandon that very honesty and expertise which is our claim as professionals.
 
To include members of the public is to assume that they, simply by being the public, share a uniform set of insights and a fairness that we cannot muster from within our ranks. This shows a self-doubt which cannot help but undercut our continual efforts to advance the reputation of the profession and its members. Having a token member, or members, on the Board of Governors does too little to represent the public as a whole and dilutes the much-needed impact of a true diversity of opinions from the membership itself. It often seems to me that lawyers feel little sense of input and control in the institutions that affect their lives. This adds to lawyer stress and alienation. The many inroads and even impositions into lawyer's self-responsibility and self-governance have done little to enhance our collective reputations and leave many attorneys wondering why, if we are all that we claim that we are as officers of the court and members of a noble profession, we will descend into "navel-watching" and betrayal of the public trust at the nearest opportunity. Leave the Board of Governors alone. If more diversity is needed, add a few members from the many underrepresented groups within the Bar itself.

Thomas Mengert
Keyport

Some thoughts on pro bono by lawyers

The changes to RPC 6.1, which require 30 hours of pro bono service per year, do not go far enough. The article in your October issue, "Ethics Rule Change Encourages Pro Bono Work on Behalf of Indigents," explains that there is no enforcement mechanism for this rule. In an apparent oversight, the rule only provides for voluntary reporting on annual pro bono services provided. This rule should be corrected to require mandatory annual reporting of pro bono services provided. This would force every attorney in this state to comply with the rule. And, any attorney who does not provide 30 hours per year of pro bono services to authorized recipients should have her/his license suspended.
 
Of course, there should be another option for attorneys who do not have skills which readily lend themselves to pro bono services, such as those who practice tax or securities law. The obvious option would be for such attorneys to "donate" their hourly rate to a newly created "Money for Justice" fund operated by the WSBA. In recognition of the fact that attorneys do not take home a good portion of their hourly billing, we should cap this voluntary contribution at $100 per hour, or $3,000 annually. If only 1,000 attorneys choose this option, that would raise $300,000 annually. If 5,000 attorneys choose this course that would raise $1,500,000. I am sure you get the idea here, "Money for Justice."
 
Now, there is going to be a certain amount of resistance to this kind of progress, as there are always those among us without any vision. If the WSBA encounters serious resistance to this idea, Money for Justice, they could compromise by initiating the voluntary contributions at an introductory rate of $500 per year per attorney. Once initial resistance to the idea runs it course, the amount can be steadily increased until there is sufficient Money for Justice to purchase justice for everyone.

James Rigby
Seattle

Bar News welcomes letters from readers. We do not run letters that have been printed in, or are pending before, other legal publications whose readership overlaps ours. We ask that, if possible, letters fall between 250 and 500 words in length, and that they be e-mailed to the editor at tradelaw@thompson-law.com. We reserve the right to edit letters. Bar News does not print anonymous letters, or more than one submission per month from the same contributor.

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