February 2004

Letters to the Editor

Mr. Rigby's modest proposal
James Rigby ("Some thoughts on pro bono by lawyers," Letters, Bar News, December 2003) hopes to acquire through more fees or service enough "money for justice to purchase justice for everyone." Just maybe the bad image of lawyers, along with the inability of the relatively poor to "access justice," relates to the truth that "justice" can be purchased.

From where I sit, as a now voluntarily non-practicing lawyer, the entire "civil justice system" has forgotten its essential societal purpose — to provide an accessible fair way for disputes to be resolved so that our citizens do not feel compelled to take the law in their own hands when they are wronged. If justice can be purchased, no amount of pro bono service and no amount of fees for the "privilege" of practicing law will fix the problem. The added costs are simply used to justify fee increases across the board, leaving more people unable to pay, and therefore in "need of access." This is a spiral that defeats the essential purpose of the system itself, causing more people to lose faith in anything but money, power or violence as a method to solve their problems.

Maybe what we, as lawyers, citizens, politicians, and members of society need to do is to try to make the system less complex so that normal people mostly don't need our expertise to solve their disputes, or if they do, try to make the system work such that our expertise is needed on the merits, not on procedural and strategic ploys. Only then will ordinary citizens view our profession as truly a helping profession worthy of public respect. Not only that, but then a professional obligation to take on pro bono matters to completion (which is the only way the clients are actually helped) would be both manageable and the funds necessarily to help the most disadvantaged could be spent on issues of substance, not form.

Sonja Peterson
Spokane

I am one of the attorneys without "vision" who fails to recognize as "progress" Mr. Rigby's dream (hallucination) of funding a "Money for Justice" program operated by the WSBA. He suggests those attorneys unwilling or unable to donate 30 hours of pro bono time be forced to contribute their hourly rate to Mr. Rigby's "Money for Justice" fund. He generously caps the hourly rate at $100/hour (why?). I would like to register my "serious resistance" to his idea.

Mr. Rigby is under the illusion that he knows better than me how I should spend my time and money, all in the pursuit of his notion of justice. But what if my notion of justice is different than Mr. Rigby's or that of the majority of the WSBA? What if I do not want more of my money spent promoting illegal immigration, needle exchanges, or reproductive rights (abortion)? Are the thought-police going to suspend my license if my pro bono clients are not sufficiently indigent or their cause sufficiently "progressive"?

Mr. Rigby also thinks that given enough money, the morally anointed can "purchase justice for everyone." Busybodies have been applying that same reasoning, without success, to this nation's education, teen pregnancy, and substance abuse problems for years. I lack Mr. Rigby's confidence that a well-funded WSBA program can buy justice for everyone.

I encourage Mr. Rigby and others of similar persuasion to donate as much of their time and money to whatever causes that appeal to them, but as for me, I would rather let volunteer service remain voluntary.

Chris Reilly
Juneau, AK

James Rigby's exhortation is objectionable mainly because (1) it assumes that pro bono work is necessarily meritorious, and (2) it is unfair and unworkable for many people — I say most people — who hold law licenses.

Anyone with a four-digit bar number must surely realize by now that bozos and saints are more or less evenly distributed in all walks of life. A client's seeming poverty or professed charitable structure does not guarantee the merit of the client or of the client's position in a particular legal situation. How, just exactly, can we judge whether our colleague has done something for the good of the public? You and I will quarrel if you claim pro bono credit for helping a fringe client. I will be the final arbiter of "fringe," of course. Let's face facts: access to justice is an aspiration bearing its fair share of sentimentality.

Many lawyers occupy themselves in activities and financial strata that do not lend themselves to pro bono work. A truly mandatory pro bono rule would be observed mainly in the breach. You will hear from licensed military judge advocates, law enforcement agents, corporate lawyers, out-of-state lawyers, out-of-country lawyers, government attorney-advisors, politicians, geezers, brokers, investigators, journalists, two-kids-in-college parents, lawyers struggling financially for various reasons, newly minted lawyers with crushing debt loads, lawyers who think they are sacrificing quite enough already, and all those occupied other than in a lucrative entrepreneurial law practice.

A truly mandatory rule would kill a lot of dolphins in the tuna net. It would be a regulatory quagmire. I say leave it alone.

Jerry Stimmel
Kirkland

Having just read James Rigby's proposal for mandatory pro bono service or monetary "donations" to a "Money for Justice" fund, I am unable to read the rest of the Bar News before responding. While improving access to justice is certainly a worthy ideal, Mr. Rigby's proposal is astonishing. The concept of an attorney being forced, at pain of suspension of his ability to earn his livelihood, to "donate" time or money in such amounts as Mr. Rigby deems fit, should frighten us all.

I do not believe I am being alarmist. Mr. Rigby says it right in his letter, suggesting that the initial "voluntary contributions" be set at $500 per year, and then "once initial resistance to the idea runs its course, the amount can be steadily increased until there is sufficient money for justice to purchase justice for everyone." What part of this scheme is "voluntary" or a "donation"? The second word is more troubling. Where does it stop? How much is enough "to purchase justice for everybody"? Can justice be purchased? I thought the aim was access to justice.

The problem is not just one for attorneys, and cannot be addressed or solved exclusively by attorneys. Are doctors taxed to support basic medical care? Are plumbers taxed to ensure universal access to indoor plumbing? Justice is a societal benefit, and the cost of ensuring access to those otherwise unable to afford it must be borne by society as a whole.

If those with particular interests, like attorneys, wish to help achieve the goal, great. However, once it becomes a requirement, it is by definition no longer voluntary. It is a tax. Someone else decides how much of your money to take away from you, and how to spend it, not you.

I am not willing to give Mr. Rigby such access to my wallet. However well-intentioned, a limited number of attorneys cannot satisfy the access-to-justice needs of the entire community. The community and its lawmakers must address such concerns in the public forum.

Gordon Hauschild
Lakewood

How wonderful of James Rigby to donate my time and my money — even suggest a loss of my bar license — without knowing or understanding the work I perform. I think I can speak for the many attorneys I have worked with for years who gave their services to the local pro bono clinic without compensation and without CLE credit or without anything in return. I also know of many attorneys who give to other volunteer efforts and charities.

I am a strong proponent of "giving" to those of us who are less fortunate and to "give" to our communities. I am also a believer in helping with my legal skills as much as possible. People either want to help or not. Giving cannot be forced or mandated. I think that if WSBA were to mandate and accept such recommendations as Mr. Rigby has put forth, I believe that would be the time I would consider giving up my license. The greater risk is that other attorneys, who like me, will also consider giving up being attorneys because the risks and the costs become too high to participate.

Sorry Mr. Rigby, those who give, give because they want to, whether they are an attorney or not. I don't know what it is like in King County, but here in Snohomish County, I don't think I could name all of the wonderful, giving, incredible attorneys who give constantly both to the legal clinic locally — as well as to their clients by not charging them — and then still have the generosity in their hearts to give to this community as well. I am grateful to be a part of this legal community.

Judith R. Hendricks
Everett

WSBA license fees subject to state law?
I received my 2004 license renewal materials from the Washington State Bar Association in December. In commemoration of this momentous occasion, I would like to point out that, while the 2004 licensing fee increase is relatively modest in comparison to prior years, the fee increases imposed by the WSBA in 2001, 2002, and 2003 were in clear violation of state law. Pursuant to action by the Board of Governors on July 31, 1999, the percentage increase in the basic WSBA license fee in each of these three years was eight percent (Bar News, September 1999).

RCW 43.135.055 apparently escaped the attention of our Board of Governors: "No fee may increase in any fiscal year by a percentage in excess of the fiscal growth factor for that fiscal year without prior legislative approval."

The voters of this state enacted this statute in November 1993, as part of Initiative 601, the state expenditure limit. The "fiscal growth factor" referred to in the initiative is defined as a rolling three-year average of state population growth plus inflation (RCW 43.135.025(7)). According to the Governor's Office of Financial Management, the fiscal growth factors for 2001, 2002, and 2003 were 2.87, 2.79, and 3.29 percent, respectively. I am not very good with numbers, but I think that an annual fee increase of eight percent in each of these three years is "in excess of the fiscal growth factor" — to quote the statute.

While the statute limiting fee increases contains a few narrow exceptions (for agricultural commodity commissions, for example), the Bar Association is not exempted; the statute applies to all executive, legislative, and judicial entities that are delegated fee-setting authorities. All other state professional licensing programs seeking to increase their fees in excess of the Initiative 601 limit have sought the "prior legislative approval" required by the statute (see, for example, section 221(1), chapter 25, Laws of 2003 1st sp. sess.).

If the state entities regulating doctors, plumbers, and cosmetologists have somehow managed to comply with state law, then it shouldn't be too difficult for the Bar Association to do the same.

Steve Jones
Olympia

Editor's note: Curious about Mr. Jones's letter, we put the question to WSBA General Counsel Bob Welden, who advised that RCW ch. 43.135 "appears to address only legislative expenditure limits on the Washington State General Fund and revenues to the fund. The Washington State Bar Association receives no funding from the state funds. RCW 43.135.055 applies only to state agencies subject to legislative control. The Legislature does not have authority to set fees for licensing of lawyers. That is within the exclusive authority of the Supreme Court."

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