May 2003

Reading Around

by Lindsay Thompson

Bellingham Lawyers Oppose War

About 30 Bellingham-area lawyers led a March 26 rally and marched through the city's downtown, according to The Seattle Times.

The event was one of a series organized by longtime activist and Bellingham attorney Joe Pemberton. He told the Times reporter his calls to colleagues as war loomed showed a consensus against armed conflict. He decided to organize. The week before, a Pemberton-organized effort led to 15 lawyers and firms closing, signs on their doors reading "In honor of those now dying in Iraq."
 
Maritime lawyer Dennis Murphy said he felt an obligation, as an officer of the court, to call attention to violations of international law by the United States. And as officers of the court, they made sure to get a permit for the march, which ran from the federal courthouse to the county courthouse. "We're not radicals," Pemberton said. "We're lawyers."

Supreme Court Upholds Washington's IOLTA Program

The Washington Legal Foundation's decade-long effort to kill off state programs which give interest on lawyer trust accounts to legal-aid programs met with a setback March 26 when the U.S. Supreme Court ruled Washington's IOLTA program does not violate the constitution's Fifth Amendment takings clause.
 
The case, styled as Brown v. Legal Foundation of Washington after the court found the Washington Legal Foundation had no standing, held that clients suffer no pecuniary loss. Justice John Paul Stevens, writing for the majority, found that the administrative costs of tracking and paying interest on the average trust-account deposit were greater than the average interest earned, so no just compensation is required. Justice Antonin Scalia, in a sharply worded dissent, argued that under the court's ruling in Phillips v. Washington Legal Foundation, 524 U.S. 156 (1998), once interest is earned, it belongs to the client, period. Justice Anthony Kennedy, who joined in the dissent, added his own, arguing that plaintiffs' claims requiring clients to give over their trust-account interest to legal services compels them to support programs with which they disagree, and predicting that will be the next issue to reach the Supreme Court.
 
Petitioners in the case were Allen Brown and Greg Hayes, who alleged they regularly buy and sell real estate through limited practice officers in title companies, who are also covered by IOLTA regulations. Each objected to use of the interest on their monies being used to fund legal services or paid to anyone but themselves, and that they felt compelled to support organizations they disagree with. The court could not determine in the record how much Hayes claimed to have lost; Brown said he was deprived of $4.96 interest on $90,521.29 in escrow for two days.
 
Justices Stevens, O'Connor, Souter, Ginsburg and Breyer were in the majority; Justices Scalia, Kennedy, Thomas and Chief Justice Rehnquist were in the minority. Brown v. Legal Foundation of Washington, 538 U.S. ____ (2003).

St. Louis Archivists Find Slaves' Lawsuits for Freedom

State archivists invited to restore and preserve some four million court documents left unexamined for over a century in file cabinets in the St. Louis Courthouse have found nearly 300 lawsuits by slaves seeking their freedom between 1809 and 1865.
 
Missouri enacted legal safeguards to protect slaves from retaliation if they sued, and set aside tax monies to pay for legal counsel. There were three grounds for suits: claims that they were free and kidnapped into slavery; that slaves had previously bought their freedom; or that they had been set free by their masters. Defendant slaveholders had to put up a bond against failure to appear or selling the slaves before trial; some judges took plaintiff slaves into the courts' protection and hired them out for labor, allowing them to keep their wages if they won.
 
Notable among the cases discovered is the pleading filed by Dred Scott in 1846, alleging that with his master, an Army surgeon, he had lived in free states for years and could not become a slave again when he was brought to Missouri. Scott won his case, but the U.S. Supreme Court ruled in 1857 that since he was African American and not a citizen, he had no right to sue. Missouri stopped funding slave suits shortly before the decision, and after it the suits trickled to a halt.
 
The complete records of all 283 freedom suits are available for download at http://www.stlcourtrecords.wustl.edu.

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