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November 2004Letters to the EditorCorrecting the record Thank you for clarifying that the late Judge Bill Lewis was not a founding member nor associated with the firm of Lee, Smart, etc. (Letters, September 2004). For those of us who practiced before Judge Lewis, we remember him as a kind, fair and no-nonsense judge who “usually always” came to the right conclusions. This gives me a chance to say publicly how much he is missed. It was an honor to be in his courtroom. Douglas J. Smith Wave goodbye to attorney-client privilege? I appreciate the thoughtful presentation of divergent views on governmental attorney-client privilege in the September issue’s discussion of the Hangartner case (Bar News, August 2004). My own position is similar to the one that Bernie Friedman eloquently argued in his article. It should be pointed out that both governments and the news media have internal conflicting interests. Obviously both open government and a free press is key to our type of democracy. But the media are businesses, and they have self-interest in full access to titillating material for entertaining stories. And, while government serves the people, governments have institutional interests against full disclosure in all circumstances. The unanswered questions Mr. Friedman raises at the end of his piece are the most interesting: who owns the public’s attorney-client privilege? How long does that privilege last? How do we ensure that the privilege is not used to reduce accountability? My view is that ultimately the legislative authority has the right to waive attorney-client privilege. The legislative authority can be the Legislature or the People through the initiative. But waiving a government’s attorney-client privilege across the board would be remarkably stupid. It would be like telling the Armed Forces that they must publish battle plans at least 48 hours ahead of any action, in the interest of public disclosure and media access. We should not destroy the ability of elected and appointed officials to consult confidentially with their attorneys. That would cost the taxpayers a great deal of money because it would give a huge competitive advantage to the private sector in transactions and to opposing counsel in litigation. Al-though Washingtonians are very committed to open government, we establish governments as institutions — as governmental corporations; in order to work most effectively they must be allowed to function as legal persons (including maintaining the ability to consult with legal counsel). Hugh Spitzer From the Department of Redundancy Department I enjoyed Robert Cumbow’s article “Commonest Errors in Contract Drafting” (Bar News, August 2004), but I must disagree with his thoughts on using “including without limitation” or similar language. Under the doctrine of ejusdem generis, a list of particulars after the word “including” confines the general language to things similar to the list of particulars. See, e.g., West v. Umialik Ins. Co., 8 P.3d 1135, 1141 (Alaska 2000); State v. First Nat’l Bank of Anchorage, 660 P.2d 406, 419 n.24 (Alaska 1982); Lombardo v. Pierson, 121 Wn.2d 577, 583 n.4, 852 P.2d 308, 312 n.4 and accompanying text (1993), (citing Dean v. McFarland, 81 Wn.2d 215, 221, 500 P.2d 1244, 74 A.L.R 3d 378 (1972)). By using “including without limitation,” “including but not limited to,” “the following are merely illustrative but not limiting,” or similar language, drafters are instructing the courts not to apply the doctrine but to look at the general term — not merely items similar to those found in the list — if the particular item at issue is not listed. Thus, the use of this language is not redundant, but a useful direction to those who interpret the contract. Marc Bond 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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