August 2004

Letters to the Editor

Sometimes the system really works

Personally, and on behalf of my client, I would like to extend my sincere thanks to the members of WSBA and, in particular, the Board of Governors, for the manner in which they stepped forward and took responsibility for the criminal actions of one of our members.

Ken Schmidt was appointed trustee of funds received for an 11-year-old boy whose mother was killed by a drunk driver in 1999. Mr. Schmidt proceeded to raid the trust account for over $75,000. He admitted having substance abuse problems, let his practice deteriorate, and neglected to renew his bar license. His only apparent source of income was the trust fund. Eventually he abandoned his practice and moved to Minnesota, where he hid out in a backcountry canoe camp for several months. He then returned to Washington to face DUIs in two counties.

While I replaced Schmidt as trustee, there was no way to recover the misused funds from him. Mr. Schmidt got an exceptional sentence of two years in prison for first-degree theft and was disbarred.

The Board of Governors stood up for all of its members and authorized payment of the maximum the Lawyers' Fund for Client Protection allows. This does not fully compensate the trust fund for its loss, but the members of this Association can be proud of the efforts of our leadership and membership to take responsibility for the actions of the few bad apples that give all attorneys a bad name.

Scott A. Bruns
Yakima

Platonic guardians of the liquor trade?

"Time to Untie the House?" (Bar News, June 2004) has a tone of quiet impartiality, a smoothness as comforting as a single-malt scotch. Beneath its historical survey I believe I detect a set of assumptions that are both dangerous and deceptive.

No one can deny the increasing market dominance of the Costco Empire. When we hear the familiar rhetoric of efficient and cheaper distribution and antiquated three-tier marketing it may be time to pause and reflect.

Alcohol is indeed more than simply another commodity. Its use has public costs. Its regulation through any scheme to prevent vertical integration and control by private interests, let alone one as large and powerful as Wal-Mart, is a valid state interest.

That small breweries and wineries might form their own distribution companies should Wal-Mart choose to exclude any from its substantial markets is little comfort. Nor does the lethargic enforcement of our antitrust laws promise relief. So perhaps we must keep the tied house laws after all, trusting to the wisdom of those who passed them. Perhaps they knew that whatever the vacillations of relative power between producers, distributors, and retailers, separation of interests was the proper balance for the public. There are also concerns in the application process beyond simply screening for organized criminal activity. A balanced and competitive market — not as streamlined and efficient as Wal-Mart and others might wish — is essential to prevent the monopoly capitalism that would treat as archaic many regulations that interfere with its goals. The corrosive erosion that so effectively channels funds to these corporate behemoths from a captive public must somewhere find resistance. However benevolent Wal-Mart may wish to appear in providing cheaper alcohol of its choosing to a thirsty public, it may have met its match in Washington.

May Washington State not join those communities that often tumble over each other to pave the way for Wal-Mart's Trojan horse with tax breaks and other incentives as it moves with the inevitable progress of a glacier sweeping all before it. As one who remembers stores that were not stadiums, communities that supported local businesses, and sympathetic as I am to small producers, I hope that the tied house laws stand strong against this most recent assault.

Thomas Mengert
Keyport

Safe electronic filing is possible

Seattle appellate attorney Catherine Wright Smith is correct to worry about the possible effect of an e-served motion for reconsideration, and whether such a motion would extend the time for an appeal (Bar News, Letters, June 2004). Lawyers need to worry about this in the paper world, too!

I question, however, her assertion that Washington Court Rules need to "catch up with the technology" with respect to electronic service. GR 30.2(d) clearly provides for electronic service between the parties by agreement. What is needed to avoid the concerns she raises is a carefully drafted case management order or stipulation for electronic service. Topics such as when service is deemed effective (when received on the vendor's system, or as if served by mail?); the cut-off time for service in a day (11:59 p.m. or 5:00 p.m.?); how to handle documents that should be sealed or redacted — all these are fair topics for an e-service case management order or stipulation. The stipulation may want to include an "oops" clause that covers the possible situations of errors in transmission, or inadvertent errors in the service list. In these situations, the party may be entitled to an order extending the date for response.

The point is that Washington lawyers need not wait for courts to slowly adopt formalistic e-filing or e-service court rules that cover every possible scenario. The technology and rules are here, now. With carefully drafted case management orders and stipulations, the Washington Bar can take advantage of the many benefits of electronic service under GR 30.2(d) immediately.

Scott Wetzel
Bellevue

Legal needs' Gordian knot

Having read the Washington State Civil Legal Needs Study, I was interested to also read David Savage's "A Profound and Grave Crisis" (Bar News, June 2004). I finished the article with the same feeling I had after reading the study — that the focus seems off target. While both the study and the article focus on the unmet needs of one million of Washington's low-income citizens, isn't the real problem much broader?

Of specific note, the report's Findings of the Stakeholder Survey (a "stakeholder" being defined as "bench, bar, court personnel, social and human services providers and legal services providers") states "there was little or no difference between the needs of low- and moderate-income people in Washington State" (page 79). One Spokane judge stated that in his opinion "the legal world is not available to either low- or moderate-income people without pro bono volunteers, legal services, volunteers or lawyers willing to accept cases on a contingency fee basis" (page 79). So why seek to develop a system that favors low-income over moderate-income people, if the unmet needs of both are the same? The obvious answer is that if it is almost too costly to solve the problem of low-income citizens, then it must be truly impossible to solve the problem of moderate-income citizens.

When trying to help moderate-income clients, sometimes the best service you can do for them is to help them avoid the legal system. They might have suffered a clear injustice, but the costs and risks of the legal system in trying to correct this injustice would probably dwarf the problem they think they have now. If so, then the lawyer's knowledge of non-legal remedies is sometimes the difference between at least trying to give them actual assistance and just shrugging because they can't afford you.

District courts were supposedly created to give a simpler, faster and cheaper means of justice. But in our county, the criminal and infraction cases swamp their docket. And it is not too hard to make litigation in district court just as costly as litigation in superior court (and one side may always have an advantage in making it so). I have seen some excellent work done in small claims court, but the ability to appeal the majority of these judgments to superior court can radically change the cost and time for low- and moderate-income clients seeking affordable justice.

Unless we are just going to accept the Golden Rule (i.e., he who has the gold makes the rules), don't we have a deeper problem in our legal system?

Frank F. Randolph
Longview

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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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