December 2004
Letters to the Editor
If Bar News isn’t pushing one agenda, it’s pushing another
I am sad to see that the goal of a color-blind society, for which I and so many others in the civil rights movement have been fighting for more than 50 years, has still not reached the pages of Bar News.
In a society of equality, the color of President Ward’s skin would be as irrelevant as the color (or lack) of his hair, the length of his fingernails, or any other physical attribute not directly relevant to his role as leader of our Association.
There may be times when physical description is necessary — it makes sense for the police to describe a suspect being sought in terms of race, gender, age, height, weight, rather than just to say “we are seeking a person” and have to leave it at that. But there is no need for Bar News to mention Mr. Ward’s race unless for some reason — I can’t imagine what — they feel this will affect the way he represents the members of the Bar.
There was a saying in the peace movement some years ago: “There is no way to peace; peace is the way.” The same is true of equality. There is no way to equality; equality is the way. The only way to have a society of equality is to be a society of equality — to practice what we preach.
We will never achieve a race-neutral society as long as our leaders emphasize racial differences. By its emphasis on the color of a person’s skin, Bar News makes a clear statement that they are not prepared even today to treat people simply as people and not as members of this or that racial group. I find that sad.
Perhaps the dream of Rev. King, which I bought into so many years ago and still hold dear, of a society in which the color of person’s skin is simply irrelevant to who they are or how they are judged is unrealistic, idealistic, and ultimately silly. But I am not yet ready to give up the dream.
I just wish that the Bar were willing to dream — and live up to — the same dream.
Christopher Hodgkin
Friday Harbor
No it isn’t
It was refreshing and encouraging to read the words of our new President, Ron Ward, in your October issue (“First, Let’s Bless All the Lawyers”).
We need a pat on the back sometimes to remind us that as lawyers, despite our shortcomings, we are decent people committed to our profession and our clients.
That article made me feel good to be a lawyer, yet it also challenged all of us to be good stewards of our profession and to get involved. I’m grateful for the tremendous leadership our organization has.
Michael J. McKasy
Tacoma
It’s just daft
When I finished the article “The Employer/Employee Relationship in the New Millennium” (Bar News, November 2004) I had an immediate reaction. Was it written in jest to provoke a response?
It is difficult to believe that anyone would seriously suggest that the courts usurp the legislative power to the extent suggested in the article. There is nothing wrong with the current law that essentially allows the employer to terminate an employee without cause absent a contract between the employer and employee for a definite term except when to do so would result in a violation of public policy. What is the compelling need for a change? Why should the change be a matter for the judiciary instead of the Legislature? The article answers neither of these legitimate questions.
My only surprise is that the author didn’t suggest the court legislate a cost of living increase each year for the employee. I doubt the author would consider that to be too much of a stretch.
Elvin J. Vanderberg
Tacoma
A simple mistake?
The October Bar News discipline column reported that Attorney Victoria N. Smith of Bellevue had received an admonition “based on her conduct in 2000 involving filing of an inappropriate lien.”
The column stated as follows:
In March 2000, while Ms. Smith was an associate in a law firm, she filed a Notice of Attorney’s Lien against a client’s real property. When Ms. Smith learned that the client had quitclaimed his interest in the property to a third person, she asked a member of the firm about removing the lien. The firm member determined that the lien should not be removed. Ms. Smith also discovered later that liens based on the attorney lien statute cannot be asserted against real property. Ms. Smith relied on the firm member’s instruction in filing the lien, and failed to perform her own independent investigation.
Ms. Smith’s conduct violated RPCs 3.1, prohibiting lawyers from bringing or defending proceedings unless there is a basis for doing so that is not frivolous; and 4.4, prohibiting using means that have no substantial purpose other than to embarrass, delay, or burden a third person.
From the foregoing, it appears that Victoria made a plausible, simple and entirely innocent mistake: She drew an analogy between an Attorney’s Lien and some sort of construction or contractor’s lien, and acted accordingly. Moreover, it appears that her motives were entirely innocent and, indeed, wholesome: She was merely attempting to collect a debt which was lawfully owed to her employer. If this is so, then certain issues would seem to arise.
First, the application of RPC 3.1 to the filing of a lien, apparently on the theory that a lien is a “proceeding,” seems to involve a rather aggressive construction of the term “proceeding.” “Words and Phrases” lists various cases which define the word to cover only some form of court action, which is more in line with common understanding.
Second, everyone makes mistakes, and anyone who thinks he does not make mistakes, is mistaken. Imposition of liability for simple mistakes, especially a single simple mistake, is effectively the imposition of discipline at random. Everyone does it — the only difference is who happens to get caught.
Third, Victoria was charged with bringing an action for which “there was no basis for doing so which was not frivolous.” However, Victoria’s (apparent) thought processes leading to her filing were not “frivolous.” Rather, her thoughts were entirely logical:
(a) There is something called an Attorney’s Lien; (b) Liens are commonly enforced by filing against real property; (c) a well-respected partner in a well-respected law firm (her employer), has provided advice stating that filing against real property is the proper procedure; and (d) money is actually due and owing upon a legitimate debt. Arguably, the combination of a + b + c + d entirely negates the notion that the filing was “frivolous.”
Fourth, if the WSBA wants to impose discipline for every filing which is not backed up by actual library research, then it should give due notice to members and propose to change the text of RPC 3.1 to read as follows: “A lawyer shall not commence any proceeding without first having satisfied herself by means of independent research into both the facts and law that such proceeding is substantially justified. A lawyer may not rely upon the advice or research of another lawyer, or a paralegal, in order to satisfy the requirements of this rule.”
Fifth, Victoria was charged under RPC 4.4 for acting “with no substantial purpose other than to embarrass, delay, or burden.” But Victoria’s “substantial purpose” was apparently (1) to follow the instructions of her employer and (2) to collect a lawfully-owed debt. It would seem that the specific intent requirement of RPC 4.4 was not met.
Edward V. Hiskes
Richland
The Office of Disciplinary Counsel provided the following response: Discipline notices in Bar News are necessarily short, and intended to provide only a brief synopsis of the misconduct, from which members can inquire further. The synopsis regarding Ms. Smith does not mention, for example, that Ms. Smith filed a lien to secure attorney fees before the fees were owed, and against property no longer owned by the client. Nor does it mention that Ms. Smith failed to remove the lien for approximately a year after she learned that the client no longer had an interest in the property, and then only after the firm had extracted a promise from the property owner to drop the grievance and waive civil liability against firm members in exchange. Also, the employer, who is described as “a well-respected partner in a well-respected firm,” resigned in lieu of disbarment in 2003. Ms. Smith stipulated to receive an admonition, a nonpermanent record of rule violation without sanction.
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