June 2003

Letters

Wit and Twaddle-Exposing, All in One Issue

Lindsay Thompson was in rare form in the April issue of Bar News and I, for one, wish to express my appreciation of his wit and spunk. We are passing through a dreary time where nonconformist opinion is denounced as unpatriotic and expressions of unpopular views are often hedged by all sorts of defensive disclaimers. So it was indeed refreshing to see Mr. Thompson's willingness to call pious twaddle by its proper name without apology or qualification.

My admiration is directed not simply to Mr. Thompson's exposure of the hypocrisy underlying the opposition of right-wing curmudgeons to legal service programs. Even his coverage of such unpromising material as the meetings of the Association's board was literate and incisive. In short, Mr. Thompson's editorial talents have transformed an otherwise tedious professional journal into a lively and provocative public forum. Not a small feat!

Keep up the good work.

Stafford L. Smith
Seattle

What's a Gormless Prat?

I enjoyed your April Editor's Page. As you used the phrase "gormless prat" three times, I looked it up. It has a great ring, but alas, I fear it is redundant. Are not all prats gormless?

Pronunciation: gτrm΄lis
Function: adjective
Etymology: alteration of English dialect gaumless, from gaum, attention, understanding (from Middle English gome, from Old Norse gaum, gaumr) + -less
Date: 1883
Chiefly British: lacking intelligence: STUPID (www.m-w.com)

"Prat" did not appear in more conventional sources, but did in a slang Web site: "prat n. To call somebody a prat is rather similar to calling them an idiot. It's often meant to mean someone's general attitude than concerning one particular incident — 'I met my sister's boyfriend the other day and he seems like a complete prat.' Derived, I believe, from a time when the word was slang for your posterior, in a similar way to the more contemporaneous arse." (english2american.com/dictionary/p.html #prat).

Dustin R. Klinger
Portland

Things Change

Speaking as a member of a gender once considered both "chattels" and "possessions" (just like animals) not so very long ago, I'd like to point out that things change. Our laws are meant to reflect the sensibilities of our society, and to change as those sensibilities change. Otherwise I would still be unable to vote or own
property.

And as far as the absurdity of animal lawsuits goes, would the anti-Karp letter writers also remove the right of civil suit from severely mentally challenged humans, since he or she would be unable
either to manage any monies stemming from a successful suit, or to understand a suit brought in his or her name? Perhaps just as we protect those humans who need protection, we also need more effective ways to protect the animals under our care, whatever shape such protection would take.

I believe Mr. Karp's intention is to create a dialogue around an issue that has not been fully explored, and I applaud him for it. Though this thorny dialogue seems problematic to our justice system, and to our accepted definitions, that is not reason enough to refuse to engage in it.

Gayle Chronister
Seattle

It was disheartening — though I suppose not all that surprising — to see the negative responses to Adam Karp's article on animal law ("Lex Feles et Canis — Beyond Ferae Naturae," February Bar News, p. 16), and the foundation of WSBA's Animal Law Section. I am writing to counter some common misconceptions about animal law, and stress its importance to our society — and thus to its lawyers.

First, do not underestimate the importance of animals to a large percentage of the general population — your potential and perhaps current clients. Billions of dollars are spent in the United States every year by pet and livestock owners, and others involved in animal-related industries.

Second, and perhaps more importantly, it must be emphasized: animal law is not animal rights. It is "standard" law applied in a particular setting. There is nothing inherently more unusual about animal law than there is about other fields that look at how "standard" law applies to a specific subset in other contexts — such as Internet law, elder law, juvenile criminal law, venture capital . . . you name it, there are numerous and varied examples to choose from in our increasingly specialized practices. The authors of the letters focused in large part on Mr. Karp's discussion about an animal's standing to sue — but that is just one perspective on only one issue in the animal law field.

The Animal Law Section of our Bar is made up of diverse members: defense and plaintiffs' counsel, prosecutors and defense attorneys, corporate attorneys, trust attorneys, government attorneys. The list goes on to include just about every walk of legal life. Discounting the entire section and designating animal law as "bull" because one disagrees with the opinions on a few discrete topics as expressed by one member, is quite bluntly a narrow and shortsighted view. It would be like saying that insurance law is "bull" because you don't like the view of a particular lawyer on an insurance law topic. I respect the views of my fellow Animal Law Section members — even while I don't always agree. Indeed, our section meetings have contained lively discussions with a wide variety of views being expressed. Focusing on the views of an individual lawyer to judge the worth of a general area of law is missing the forest for the trees.

Why is an animal law section important, and how is it relevant to our times and to lawyers at large? Animal law is a changing landscape, largely due to the changing perceptions and importance that we as a society place on our companion, service, working and other animals. One letter points out that animal cruelty laws reach back to the last century — yet even that area of the law is changing dramatically. Evidence the increasing criminal penalties placed on animal cruelty violations, recognizing the correlation between violence to animals and later violence to fellow humans.

That brings me to another important distinction often missed in assumptions about "animal law." Animal law is not always about the animals — but is quite frequently about their owners and the general public. Mr. Karp raised the controversial, but very real and growing debate about the appropriateness of permitting owners to recoup emotional distress damages when their companion animal is hurt out of negligence or, worse, intentional acts. The letter writers' disagreement with one view on this current hot-button topic does not negate the significant potential legal impact of the issue itself. The diverse Animal Law Section simply provides a forum for intelligent analysis and debate about such issues. In addition, there are several, perhaps more mundane areas that are of very real concern to the members of our society, and thus to their lawyers. For example, in our recent CLE we had a wonderful presentation by Barry Sheridan about Layla's Law, the stringent protection enacted to protect people with disabilities and their service animals. Katrina Glogowski discussed aspects of the Disabilities Act that pertain to rights to have service animals in various public places. Those laws aren't about protecting the animals so much as they are about protecting the rights of the people who rely on them.

Also note the tremendous increase in attention to dangerous dog laws, and liabilities for ownership of a dog that hurts another person or animal. This is an issue affecting everyone in our society who lives near animals or encounters animals in their daily lives — in other words, it affects everyone, irrespective of whether that person owns or even likes animals. From the animal owner or animal business perspective, especially with respect to dogs, there are municipal and state restrictions on dog ownership in response to increasing media attention to dog attacks, and insurance and airline breed-specific bans. Lest anyone forget, the refusal of insurance companies to provide insurance to owners of certain breeds — regardless of the individual dog's actual history or propensities — affects everyone in society, not just the dogs' owners. Insurance is often the only meaningful source of monetary compensation for physical injuries inflicted in a serious dog attack.

Without writing a treatise on the topic, I invite our fellow WSBA members to keep an open mind, and actually look at what the Animal Law Section is doing. Join the e-mail list, attend a meeting, or join the section, and listen to the discussions. Dare to brush away any initial misconceptions. I don't mean that all members must get involved, but simply take the time to see the section for what it is. I ask our fellow Bar members to respect animal law practice and its practitioners, and the need for people who are knowledgeable in that area. 

"Animal law" impacts our legal system and our society — and eventually, ultimately, your client. At our last CLE, we drew in a full house. We had discussions on pet trusts (you can laugh, until you're asked to create or serve as trustee for a pet trust of several hundred thousand dollars — it's more common than you might think), service animals, animal-related criminal law, animal issues in family law (you don't think that pet owners fight quite adamantly about their respective new roles? Yes, even visitation rights are commonplace), exotic-animal ownership, contracts relating to animals (that's my particular bailiwick), veterinary malpractice issues from both a plaintiff's and defense point of view, a recent class-action case relating to vegetarianism, and, as Mr. Karp discussed in his article, animal valuation. There were many other things that could have been addressed, but there was simply not enough time. For example, animal-related legislation is a topic that will warrant its own CLE at a later point.

Don't scoff at the practice or interest in animal law and the very practical issues that arise when applying "regular" law in an animal context — because you just might find that you need to consult with a member of our section when your client is affected by one of the myriad avenues of animal law.

We may be a section of varying views, but I think there is one sentiment, expressed by Gandhi, we do agree on: "The greatness of a nation and its moral progress can be judged by the way its animals are treated."

Carmen R. Rowe, Tacoma
(land use and animal contract law)
Joined by the following Animal Law Section members, practices included to provide a flavor of the diversity represented:
Valerie Bittner, Seattle
(natural resource, constitutional and animal law)
Catherine C. Clark, Kenmore
(real estate and appellate practice)
Harlan R. Dorfman, Seattle
(criminal appellate law)
Lisa Marie Hammel, Seattle
(civil defense litigation)
Brian T. Hodges, Seattle
(judicial clerk, appellate court)
Carol Sue Janes, Seattle
(health law)
Katrina Kelly, Seattle
(general commercial litigation)
H. Wynnia Kerr, Seattle
(ERISA)
K.E. Love, Seattle
(corporate and business law)
Krista S. Mirhoseini, Seattle
(business and employment law)
Cheryl Mitchell, Spokane
(trusts and estate law)
Lidia Mori, Olympia
(government attorney,
Senate Judiciary Committee)
John C. Moore, Tacoma
(insurance defense)
Shelley Mortinson, Olympia
(Attorney General's Office, L&I Division)
Sandra Perkins, Seattle
(trusts and estate law)
Matthew Rusnak, Tacoma
(civil litigation and criminal defense)
D. Jean Shaw, Portland
(licensed in WA; corporate counsel for KinderCare)
Shirley Shteigman, Redmond
(corporate and animal law)
Arthur D. Swanson, Renton
(personal injury)
Rebecca Wallick, Lynnwood
(family law and GAL)
Anne J. Watanabe, Seattle
(administrative law)
Steve Zwerin, Seattle
(employment law and mediation)
Heather Buckwitz, Renton
(paralegal student)

A Legal Services Critic Responds

You want to know what the critics of IOLTA and Columbia Legal Services suggest (Thompson, "If You're So Smart, Why Aren't You Running Legal Services? A Challenge to Its Critics," April Bar News, p. 25).

1. The simple answer: get rid of Columbia and its siblings. The world would then be as it was before Columbia existed, in perhaps 1967, and it will not collapse.

2. If some remnant of Columbia remains, finance it by the people through the Legislature, not by hidden taxes such as IOLTA. The Supreme Court cannot finance because the Court cannot be a Legislature and a court at the same time. And, a court cannot favor a law firm or policy (i.e., Columbia) by an indirect subsidy.

3. Enhance self-help or pro se assistance. The legal community should foster the practice of advising people who are pro se. For example, a lawyer could charge to be available by cell phone as the pro se client shepherds a routine order through the courthouse. The legal community should provide better information about areas of knowledge of lawyers: different courts, procedures, legal problems and subject matter, such as military pensions, child support for special-needs children, WA divorce with Idaho implications. And public library branches could have current copies of the RCW and dedicated access to West or some other online source. People live near branch libraries, so that is where the books should be.

But why abolish Columbia? There are institutional reasons why Columbia is not a helpful use of taxpayer money. First, Columbia discourages self-reliance.

To simplify and stereotype a bit, the Democrats believe many people are helpless, and need welfare, and taxes don't matter. The Republicans believe no one is helpless, no one should get welfare, and taxes are the only things that matter. I tend to believe that people are resilient and that the survival instinct is very powerful.

The concept of responsibility is related. Society should encourage people to be responsible for their own welfare, for many reasons, one of which is that they are happier. But the more welfare, the less responsibility. Lawyers are often polished experts at avoiding responsibility for their clients.

Columbia does not foster the values of self-reliance and responsibility because Columbia provides a form of welfare, and I doubt (I don't know, I just doubt) that they try to inculcate in their clients a sense of responsibility, a sense that living off the largesse of the U.S. might be bad for one's health. Certainly providing free legal services is a statement that it is OK to let someone else pay your way. And Columbia encourages the model of helplessness by implying that calamitous and unjust consequences will befall their clients if they don't have legal assistance from Columbia.

Second, Columbia and courts are poor institutions for deciding entitlement claims. All they do is substitute the judgment of a legal services lawyer and a judge for the judgment of someone in the executive branch. There is no reason to assume that judgment is better (a pun here) and there is plenty of reason to discredit it, because, as I have so often said, the executive and legislative branches consider — perhaps imperfectly — all the public interests involved, whereas courts and lawyers consider only the interest of the person who wants the money. They don't think about where it comes from. They don't think about who loses a job when someone else gets an entitlement. (This is sort of an allegory.) I think a large portion of Columbia's budget is entitlement work.

Third, Columbia files general application litigation: they sued the post office! They sued the post office because they wanted to change services provided to indigents. We don't need this, because we have a democratic government which considers — albeit imperfectly — the competing public interests in spending our money. Neither Columbia nor the courts are set up to do that. Such litigation is not a reason for keeping IOLTA, nor is litigation designed to change the status of farm workers or immigrants or anyone else. Columbia lawyers may want to change the USA to a form more to their liking, which is fine, but they are no more qualified than any other citizen to do this, and they are not entitled to advocate for change at public expense, no matter how much they dislike the policies of an elected government.

Fourth, Columbia lawyers are bound by their ideology and the need to please their benefactors, such as the "Equal Justice Coalition." They are not subject to the curative effects of the market. They do not have to please their clients, and, if they bring general application litigation, their connection to their supposed clients is even more tenuous.

You ask about ignoring the oath of an attorney, which says one must not reject from any consideration personal to oneself the cause of the defenseless or oppressed. This is meaningless to me. If it means anything, it says that every lawyer must take every case of a defenseless and oppressed person regardless of the cost. This is not practical.

The bar can't force lawyers to work for free, no matter what the cause, because the taking clause protects us from forced labor. That is part of the constitution, and the oath says we have to support the constitution.
You also argue that objections to IOLTA and other things are a cover for the real issue. Not so. The issues are constitutional and have to do with democratic government. IOLTA raises issues of taking, freedom of speech, use of public money for private parties, taxation, and the authority of courts. You disagree with, but do not respond to the issues I have raised from time to time but might believe that the Supreme Court has inherent power to regulate lawyers. It doesn't because all government power is derived from the people and the constitution, and not from anyone's handy claim of "inherent power." Also, a court cannot properly review whether its own legislation asserting power over a lawyer is constitutional.

Many people think the structure of IOLTA and the Supreme Court is not important, because the Columbia cause is good. The structure of government is important; that is why we have a constitution. Why do I have to argue this? We have a constitution so that our elected representatives will remain faithful to the voters and so that they will not assume power they ought not have. So we will continue to have democracy.

Roger Ley
Seattle

Was Justice Done?

I learned of a recent lawyer disciplinary matter, in which the attorney stipulated to having had sex with a client, stipulated that he had violated the Rules of Professional Conduct, and stipulated to a censure. Upon submission to the Disciplinary Board, the latter rejected the stipulation and concluded ". . . this conduct does not appear to warrant discipline."

The Disciplinary Board then dismissed the complaint against the attorney. No further explanation was provided, even when requested by the complaining party. The complaining party understandably believes someone was "bought." I was shocked when I learned of this, as were my partners. Has anyone heard of any similar action by the Disciplinary Board?

Christopher E. Young
Seattle

Editor's response: In November 2002, a WSBA member entered into a stipulation to dismissal of a disciplinary complaint. The stipulation's text describes it as "a compromise agreement intended to resolve this matter in accordance with the purposes of lawyer discipline while avoiding further proceedings and the expenditure of additional resources." 

The facts of the case are that in October 2000 the lawyer was hired by a married couple to assist them in a dispute with the contractor who was building their home. Between mid-October and November 29, 2000, he assisted the couple in reaching a settlement of the dispute. The parties signed an amended construction agreement December 5 and 6, 2000. On December 8, the wife made an appointment to see the lawyer at his office. They discussed the house dispute, but conversation turned to personal matters. Later that day they entered into an intimate relationship, at which time she told the lawyer her marriage was deteriorating and she had left her husband. On December 19, 2000, the lawyer wrote the couple advising he had closed his file as of the signing of the amended agreement on December 6. He performed no legal services for them after December 6, 2000. The husband filed for divorce in Skagit County December 21, 2000. The relationship between the lawyer and the wife ended in mid-February 2001, and the wife died in an auto accident April 3, 2001.

Under RPC 1.8 a lawyer is subject to discipline for entering into a sexual relationship with a client unless a consensual sexual relationship existed between them at the time the lawyer/client relationship commenced. On September 27, 2002, the Disciplinary Board reviewed the facts and found in an October 2, 2002, order that "based on the facts as presented in the stipulation this conduct does not appear to warrant discipline." The stipulation found the lawyer "negligently believed that the representation of the clients had ended on December 6, but should have affirmatively informed them that the representation had terminated before commencing a sexual relationship with [the wife]." The Disciplinary Board approved the stipulation to dismissal on February 14, 2003.

Readers are invited to submit letters of reasonable length to the editor via e-mail (comm@wsba.org), fax (206-727-8319) or mail. Due date is the 10th of the month for the second issue following — e.g., June 10 for publication in the August issue.

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