March 2004
Letters to the Editor
Serial referring misleads people
I agree, in major part, with Jeff Tolman's assertion that "bad clients and bad cases are the cancers in our practices" ("How to Say 'No,'" January 2004). I have often commented to younger lawyers that I never lost a minute's sleep over a case or client that I declined.
I don't, however, agree with his proposed solution — referral to others, presumably friends and colleagues. What does he tell his colleagues about the referrals that he makes? That they had "unreachable expectations," "quibbled about fees," or "argued with everything he said"? Would his colleagues accept his referrals under those conditions or simply pass the problem on until someone less experienced or sophisticated gets stuck with the "cancer"?
The better solution, for both client and colleagues, is to be candid even if it means risking the loss of future business. As professionals we have a duty to give good and honest advice whether our clients, or proposed clients, want to hear it or not. Some people need to be told, in clear and sometimes forceful terms, that their case is not worth pursuing and that it is in their own best interests to move on. We cannot shirk that responsibility by passing it on, full disclosure or not, to other lawyers.
Don Logerwell
Seattle
Bar News: Neither anti-Christian nor propaganda
The editor was taken severely to task in the January issue for a supposed liberal and anti-Christian bias. That issue's letters selection should reassure conservatives that their views will also be printed no matter how reactionary or offensive they might be. The desire to silence dissent and the assumption of the posture of victim are two common techniques used today by those who resent any significant questioning of current policies in America. When these techniques fail a fall-back position is that the forum or the timing is inappropriate for criticism. Fortunately Bar News has decided not to be intimidated by petulant accusations nor by apocalyptic rhetoric of moral collapse. To critique the legality of the war on Iraq and the moral questions it poses is not anti-Christian. Pope John Paul II is among those who have pointed out the failure of our invasion to meet the criteria of the just war doctrine. To finally recognize the inappropriateness and lack of a significant government interest in enforcing private sexual morality for a sizable minority of our citizens does not augur moral collapse of all standards for sexual behavior. I can also assure the writer who questioned my own critique of the present administration's methods of assuring our nation's security that my statements were neither false nor hasty. A letter to the editor is by its nature an incomplete statement of the case and must be conclusory. I suggest that enforcing a policy of irrelevance and canceling of subscriptions will only reduce Bar News to examining narrow questions and technical matters. Bar News should be applauded for taking the broader view.
In our democracy with its preference for laws over personalities, social and political questions can never be foreign nor should they be to a publication seeking relevance to a diverse bar membership. It is not outside the law to critique wars that ignore the traditional understanding of the sovereignty of nations and our treaty obligations. It is not anti-Christian to reserve the separation between Church and State. And when the law progresses and the stigma of criminality is removed from private lives and older decisions are overruled the entire Bar and not merely its Gay and Lesbian members may approve. When even the Chief Justice of the U.S. Supreme Court feels it necessary to protest against the pressures imposed on an independent judiciary by the Justice Department, the Washington State Bar and its news publication may take note of the disturbing nature of the current administration which calls into question under its vague emergency powers so many of our traditional values and ideals as a democracy. Many nations have observed with dismay the self-serving rhetoric of our supposed war to terminate evil in its present incarnation of terrorism. If we are forced periodically to examine behind our messianic claims the erosion of traditional safeguards and to examine our actions as a nation this is to truly serve the rule of law and not to be blinded by a facile patriotism. That Bar News may be of service to this end is to fulfill its highest function. When we show that we need not be caught up only in service to our clients but to the wider implications of the rule of law this may be passion but need not be prejudice.
Thomas Mengert
Keyport
Maybe not so much discrimination, after all
As a Japanese-American immigrant who has lived during my working life in Japan and eight states, I appreciate President Savage's dedication to "opening our profession to all persons regardless of race, creed, color, sex," etc. ("President's Corner," January 2004). He concluded by asking for members of the Bar to weigh in on how that will be done.
In the spirit of that invitation, I would like to comment on the table of statistical comparisons in his article. I was confused as to the meaning of the fact that 34 percent of the Bar membership is under age 40, while 59 percent of Washington's citizens are in that age category. Since the Bar requires that its members graduate first from an accredited law school, they are generally at least age 25 before admission, while many people attend law school after several years of work in another profession (I was a computer software designer). Since attorneys often continue to practice well past the normal retirement age, 34 percent under age 40 (15 years after admission) seems about right, if an average career spans ages 25 to 70 (45 years).
With regard to women being only 32 percent of the Bar membership, we need to recognize that, as noted above, the Bar is made up of attorneys who graduated from law school as long as 45 years ago, in 1959! Certainly the number of woman law students was much smaller then. When I graduated 25 years ago, my class was about 35 percent female (although over 50 percent of the Law Review students were women). Today many law school classes are at or above 50 percent female. As we older attorneys retire, our replacement cohorts will be increasingly female.
Another factor is that bar membership is voluntary, and many professional women choose to devote several years, especially before their children start school, to concentrate on educating and training those children at a level of excellence that is far greater than could be provided in a typical daycare situation. As expressed by one such professional mother, Ph.D. economist Jennifer Roback Morse, "I also learned that being a mother is the most important thing I will ever do." While these two reasons may not account for all of the 18 percent discrepancy between female presence in the active Bar and the population, they are certainly major factors.
As to "persons of color" forming 10 percent of the Bar while they constitute 18 percent of the State population, there are complex factors affecting this difference as well. The slow demographic progress of the Bar membership dilutes the impact of more recent immigration to Washington of people of non-European ancestry, especially because such immigrants are often young adults and children. Second- and third-generation immigrants achieve at and above the average of European Americans. During the heyday of Japanese immigration, before federal law cut it off in 1923, almost all of the Japanese immigrants were farmers and common laborers. But the culture of hard work and respect for learning that they brought with them overcame the strong prejudice engendered by World War II and years of confinement in the internment camps, resulting in an ethnic group with rates of professional education and success comparable in every way to European Americans.
The hard work and success of second- and third-generation Hispanic Americans is obscured by the background of new immigrants who are still working on farms and unskilled jobs, but whose children and grandchildren have great potential.
African Americans include many impressive individuals and solid families with strong values. Their success is similarly obscured by the extent of cultural impoverishment for many others, with single-mother households handicapped in providing safe, healthy homes for young children, and the added burden of a youth culture that denigrates academic success as "acting white" and glorifies criminal gang activity. Bringing the African American representation in the Bar to levels comparable to that in the population will require us to overcome the basic challenges of poor education, criminal records, and lack of financial means for post-high school education, let alone law school.
My conclusion is that the statistics cited do not demonstrate any widespread prejudice among members of the Bar toward women or minority ethnic groups. Those of us who graduated from high school after the passage of the 1964 Civil Rights Act are so self-conscious about the subject of improper discrimination that I think it highly unlikely that any of our contemporaries would even unconsciously manifest prejudice. Rather, the goal of making the Bar comparable to the population as a whole, so that every person who is qualified, and is prepared to make the considerable effort, can become an attorney in Washington, is much more dependent on wrestling with the difficult problems of language barriers, poverty, high rates of single-parent homes, cultural prejudice against education, and the lack of financial means for seven years of costly post-high school education. These are not issues facing only the Bar, but rather our entire society.
We cannot make "instant lawyers" out of people who have not overcome their personal challenges, however great, and prepared themselves for the profession. The Bar cannot by itself mitigate those barriers, but we can certainly join with all other Americans to make the long-term effort to overcome them.
Raymond Takashi Swenson
Lt. Colonel, USAF (Retired)
Idaho Falls, ID
Editing made writer look silly
My letter to the editor appeared in the January Bar News. However, it was edited in a way that significantly modified the substance of the letter.
In my letter, I quoted from your column relative to your implication that there is an inconsistency between the Commandments and (among other things) (1) the death penalty, (2) wartime service, and (3) the occasional coveting of your neighbor's ox and/or wife. In my letter, I addressed all three of these so-called "inconsistencies." But my comments about the death penalty were deleted from the letter that was published, leaving in only the comments about wartime service and coveting. This editing, at the very least, made it appear that, although I listed "the death penalty" as an inconsistency noted by you, I had no comment about that inconsistency (when, in fact, I did). It would have been better, if you were going to delete the comment I made about the death penalty, to also delete the initial reference to it included in the quote from your column.
But apart from the fact that you made me look a bit silly by your editing, I am interested in knowing the justification for deleting my death-penalty comment. That was one of the more important points that I was making, since this idea that there is a conflict between the death penalty and the Commandments is fairly widespread. As I pointed out in my unedited letter, the Commandment states: "You shall not murder." (Exodus 20: 13, NIV). But God never prohibited the "state" (a nation or people group acting corporately) from carrying out capital punishment for certain crimes, nor from killing others when the "state" itself deemed it militarily necessary. Thus, the "state," acting in its corporate capacity, does not "murder." Only individuals commit murder. This has been properly understood for thousands of years and has also been part of the law for thousands of years. There is no inconsistency between the Commandment and the death penalty. Confusion about these truths is a fairly recent phenomenon. Your editing of my comment thus significantly altered the sense of the letter.
I do not mind editing which corrects errors, or clarifies the writing. But when the editing deletes a major point, then I think some explanation of why the editing occurred is appropriate. I would appreciate your response.
James A. Winterstein
Olympia
Editor Lindsay Thompson responds: I edit letters mainly for greater brevity; sometimes I nip and tuck for greater clarity; other times I edit bits that seem digressions from the writer's purpose. I edited Mr. Winterstein's letter to make it a bit shorter, not to make him look silly. Edits are never intended to sacrifice the writer's meaning, but, ultimately, the success of the result is in the eye of the beholder. When Mr. Winterstein sent me this letter, I offered to print it to allay any misperceptions arising from his January letter, and he kindly agreed to let me do so.
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