February 2003

Letters

I have about 20 years' experience as a lawyer.

Five of those years were spent as a deputy prosecuting attorney. Another nine have been spent as a contract defender in juvenile court, without retirement benefits, medical/dental insurance, or even scheduled vacations, not to mention the "employer's" share of Social Security. To put the matter bluntly, I have not prospered practicing law.

Do not speak to me of mandatory pro bono if you want a friendly conversation. I have made, and continue to make, my contribution on an uncompensated basis to the public weal, and to the provision of uncompensated legal services for the poor.

Small-town lawyer: Unless this lawyer charged a "substantially" reduced fee, the first hour does not count. Who decides? The call for the neighborhood association would not count unless it was an organization "primarily addressing the needs of persons of limited means." Unlikely. Coaching softball surely does not count — schools can't be said to "primarily" address the needs of persons of limited means. Nor would reviewing the coach's contract be counted unless he is a person of limited means. Actual pro bono time under the new rule: 0.

Prosecutor: Unless the newly formed community organization passes the test noted above, this hour would not count. Actual pro bono time: 1 hour.

Jane: Unless Jane has no expectation of additional fees, the initial consultation does not count. Partial fees or reduced fees may not qualify as "substantially" reduced. Helping friends and neighbors won't count unless all those friends and neighbors are persons of limited means. Unlikely. Actual pro bono time per week: 0.

Diane: Serving on a local bar executive committee hardly qualifies as service to an organization "primarily" addressing the needs of persons of limited means — although it may if the WSBA continues to give away our time. As with the activities noted above, writing articles, advising others of their legal rights (even if for no fee), or suggesting potential legal action on family law or landlord-tenant matters will only count if each person advised is a person of limited means. What is the standard? Who will monitor compliance? Actual pro bono time: time spent at the nursing home, if it primarily serves persons of limited means.

Andy: Age is no assurance that a person is of limited means, as suggested by this anecdote. If pension benefits and a family residence are involved, it is unlikely that this woman qualified, but what is the test? Actual pro bono time: 0.

Martha: Domestic violence is not limited to persons of limited means. Unless this shelter assists "primarily" those of limited means, time spent there will not count. Actual pro bono time: 0.

Ms. Michels' column (December Bar News, p. 15) serves only to reinforce the contention of those opposed to the rule that many attorneys provide service to their communities without a mandate or reporting requirement. Unfortunately, the examples chosen also point out the infirmities in the rule.

I wish to respond to John W. Chessell's letter in the December 2002 issue of Bar News (p. 9) proclaiming the unfairness of groups putting on CLEs and then restricting who should be allowed to attend. Perhaps the absurdity of his views would have been more apparent if Mr. Chessell's letter included how his own profession, deputy prosecuting attorney, handles its CLEs.

Although I am now in private practice, I remember fondly the days when I was a deputy prosecuting attorney and could attend the CLEs put on by the Washington Association of Prosecuting Attorneys (WAPA). Those were indeed the days, when I could get 15 to 16 hours of CLEs for the outrageous sum of $10 to $15, not to mention obtaining per diem and expenses. Now I spend close to $1,000 a year.

The funny thing was, when I attended those CLEs, there was not a defense attorney in sight. Given that the quality of those programs was quite good, there had to be some other reason there were no defense lawyers. I believe the reason was, if memory serves correct, that they were excluded.

I do not hear Mr. Chessell criticizing the exclusion of defense lawyers from WAPA-sponsored CLEs; he appears only to criticize when defense CLEs exclude prosecutors. He suggests, by innuendo, that if the truth does not hurt, then these defense CLEs must deal with untruths. That assertion is ridiculous.

If Mr. Chessell wishes to have some credibility, then he should also have taken WAPA to task for its exclusion of nonprosecutors. Personally, I like things the way they are and have no problem with certain CLEs limited to certain types of attorneys.

John Chessell's objection to a criminal defense seminar excluding prosecutors and law enforcement personnel is unfounded. What possible interest could a prosecutor have in attending a defense seminar other than to "eavesdrop" on the techniques that will be used by the defense? The purpose of such attendance would not be to further the prosecutor's own knowledge of the law but simply to enjoy a reconnaissance mission on what the other side is up to.

The presence of prosecutors at a defense seminar, or the presence of a defense lawyer at a prosecutors' seminar inhibits, if not precludes, the free exchange of ideas that truly enhances a practitioner's ability to practice his or her craft.

While I might relish the thought of being a fly on the wall at a prosecutors' seminar, I certainly understand and respect a prosecutor's desire not to have me present. But then as a practical matter the general bar is never informed of when or where prosecutors' seminars are occurring.

I, for one, learn a great deal from my colleagues at seminars that I attend or at which I teach. I doubt that I would learn nearly as much, if any at all, from a prosecutor.

I am certain personal injury lawyers feel the same way about insurance defense lawyers and vice versa. The purpose of our seminars should be first and foremost to improve our ability to defend our clients, not to enhance the opposition's ability to convict them.

As a result of the review of The Emperor of Ocean Park (December Bar News, p. 29), I certainly won't read it. However, why did the author of the review take the time of her readers to tell them that?

It isn't that I am jealous of one of my successors, just disappointed that her approach to a book review is so completely negative. She should have told us about a book that she enjoyed instead. In my Bar News reviews circa the '90s, I tried to reveal the value of reading a book that was somewhat of a modern classic so that my reader would want to ultimately read it, too. I hope I succeeded.

(Editor's note: Mr. DeTurk was a valued Bar News contributor between 1988 and 1995, producing an annual appraisal of a classic of legal fiction for the magazine's book issue. We hope we can get another such review in the future.)

I read with interest the contribution of Mr. Roger B. Ley concerning proposed RPC 6.1 involving pro bono service (December Bar News, p. 9). As president of the board of Columbia Legal Services (CLS), I admit to a bias concerning this aspirational proposal, but that is not why I write.

Mr. Ley has unfortunately selected facts concerning CLS to support his assertions that are untrue or misleading. A few clarifications are in order.

At the time the Supreme Court adopted the IOLTA rule, there was no CLS. IOLTA funds are conveyed, as your readers know, to the Legal Foundation of Washington. The organization makes decisions about where the funds are distributed. The indigent clients of CLS are beneficiaries of those funds, just as the indigent clients of various local bar association programs are also beneficiaries. CLS has no affiliates.

It's hard for me to imagine any circumstance where a CLS lawyer would need to consider the Second Amendment, since the scope of their work is civil and not criminal.

During my more than a dozen years of serving on boards of legal-services organizations, I have yet to see any case undertaken or litigated for trivial reasons based upon any ideology. It would be kind of Mr. Ley to write to me directly and inform me of any.

I am aware of the post office delivery issue noted by Mr. Ley. I expect Mr. Ley receives his mail at a specific address. Unfortunately, when someone is homeless, they are unable to even receive job applications or get a driver's license to find work unless they have a specific address. The result of the action that was filed was an agreement to provide a specific post office box that can be used in lieu of "general delivery."

While I fully recognize that Mr. Ley is entitled to his opinion, it does not appear that he has spent much time with legal-services attorneys. Had he done so, I expect his opinion of their abilities, dedication to their clients' interests (as opposed to their own interests), and level of advocacy might be different.

As I read the proposed rule, the intention of the BOG was to give options to attorneys who are privileged to practice law in this state. I see no requirement that money be contributed or contributed to CLS specifically. However, if Mr. Ley elected to contribute financial support to CLS, I would welcome it. He need not wait for any rule to be adopted.