October 2004

Letters to the Editor

Public-records spigot still on

As one of the attorneys who successfully argued Hangarter v. City of Seattle before the Washington Supreme Court, I was surprised to see the cover of your September issue. It paired a precarious tower of papers in an "in" box with an empty "out" box under the banner: "The Hangartner Decision: The Supreme Court Limits Access to Public Records."

That's pretty dramatic stuff. To see that cover is to think that Hangartner shut the spigot on public records requests and converted the Public Disclosure Act ("PDA") into the documentary equivalent of the Roach Motel, where "records check in, but they don't check out." Unfortunately, this image finds no basis in reality.

Hangartner changes nothing. Neither of its holdings alters the existing flow of documents under the PDA.

First, Hangartner's affirmation of an attorney-client privilege exemption is consistent with what has occurred all along — Washington agencies have always withheld attorney-client privileged material in response to PDA requests. Hangartner also keeps Washington in line with the rest of the country. Attorney-client privileged material is exempt from disclosure under the federal Freedom of Information Act, on which the PDA was modeled, and under essentially every other state's public records laws (Florida being the only exception found by our opponents in Hangartner).

Second, Hangartner's holding that a request for "all" of an agency's records is unlawful will have no effect in the real world. Can anyone find another example of the PDA being used to request "all books, records, documents of every kind and the physical properties" of an agency, as was the case in Hangartner? I have not been able to. I'm not surprised, because both requesters and agencies have incentives to focus requests. Requesters would rather review a reasonable, responsive set of records than review, or pay for copies of, a warehouse of records that may or may not be relevant. Likewise, agencies would rather respond to a more focused request than to a broad, ambiguous one. That's why the PDA already allows agencies to ask a requester for clarification. In most cases, a letter or a phone call to the requester usually results in a reasonable solution that's better for both sides.

Powerful interests — including those represented by some of the authors of the Hangartner articles in the September issue — are currently planning to storm the Legislature with shouts of "returning" the PDA to its pre-Hangartner state. I have no doubt that they will be waiving the cover of your September issue as proof of their claim that the Legislature must now fix what the Supreme Court broke.

Hangartner did not alter the PDA, let alone break it. The PDA doesn't need fixing in response to Hangartner.

If you ever consider running a story on another Washington Supreme Court decision, I sincerely hope that you seek the input of those who know the case best—the ones who actually argued it. It might prevent you from painting the wrong picture on future covers.

Thank you very much.

Roger Wynn, Seattle

Is what we are more important than who we are?

I have long admired Lindsay Thompson's work for the Bar Association, particularly his editorship of the Bar News, so I am hesitant to criticize his work in any regard. I consider, however, the matter of which I write here too significant to let pass without comment, even though I respect the writer.

Part of the Around the State section of the August 2004 Bar News is "The Judiciary," p. 47, updating news about judges in Washington. That report states that, "On June 15 the Senate voted 98-0 to confirm U.S. Magistrate Judge Ricardo S. Martinez, 52, as the state's first Hispanic federal judge." That statement is not only technically incorrect, it is also unfair to Judge Martinez and to those who pursued and obtained his appointment. The statement is technically incorrect because the appointment was not as an "Hispanic federal judge," but as a federal judge. I have not read the legislation but I would bet the farm that there is no category of federal judge called Hispanic. The unfairness is that it suggests (although subtly and, probably without meaning to) that his appointment is somehow different than other federal judge appointments and that the standards and criteria for his position may be different than for others. The message may be that he's not "a federal court judge"; he's "an Hispanic federal court judge."

This is not to suggest that the facts of Judge Martinez' heritage and ancestry are insignificant. I do not know Judge Martinez personally, but I'm sure he has much to be proud of relative to his own accomplishments and his cultural roots. The fact that there has never before been a federal judge in this state who is Hispanic is certainly of import, although it probably says more about this state than it says about Judge Martinez. Mentioning that he is the first Hispanic person in this state to be appointed to the federal bench is important, but that does not make him a different type of judge than all those who have gone before and should not define his appointment.
 
Gene Oliver, Seattle

The archaisms of legal drafting

Robert Cumbow's "Commonest Errors in Contract Drafting" (August 2004 Bar News) is full of good advice for lawyers drafting contracts. In abjuring strings of "whereas" recitals to open a contract, however, he did not go far enough. Cumbow recommends a section captioned "Recitals" followed by a section captioned "Agreement." Such an approach, though, suggests that the parties do not agree about the recitals, only about the provisions after "Agreement." Frequently, in preparing contracts, I find that it's important to assure all parties have a common understanding of the facts. If they don't agree about them, the contract is going to be in trouble down the road. My approach has long been to start my contracts with a section I caption "Background"; it's always section 1 of the contract, and as a contract section it's something to which the parties explicitly agree. To follow Cumbow's example in his article, I want the parties to agree that Francine has written a children's book on the subject of bees — I don't want a dispute later on that as a mere recital, that statement was not binding on the illustrator on the question of authorship. So I would start his contract with a simple sentence: "The parties agree as follows," followed by a section 1 of "Background," and then the dispositive contractual provisions.

Cumbow's basic advice applies: say what you say in a contract for a reason, don't just follow old boilerplate. I don't need recitals; I need the parties to agree on the facts. One guy's approach.

Jeff Sconyers, Seattle

More thoughts on random thoughts

I enjoyed reading the article "Random Thoughts from 20 Years on the Bench." Allow me to disagree with a small part of it. The writer claims that the practice of filing affidavits of prejudice "is demeaning, disrupts the flow of cases through the system, and is essentially useless." I suppose that it would seem that way to a judge who is "affidavited." It certainly doesn't seem that way to many practicing lawyers. Most judges are neutral, objective, and conscientious. A few are not, and routinely exhibit bias or behavior that hardly engenders confidence that a fair decision will be reached. Affidavits of prejudice are sometimes the only meaningful way for a party of limited means to get a fair shot without having to file an appeal. That is the unfortunate reality, and it should not be blamed on the lawyers.
 
Bruce Finlay, Shelton

A cautionary note

On page 48 of the August 2004 Bar News, Charles B. Allen's resignation in lieu of disbarment is reported. He made the mistake of contracting with an estate-planning company to review estate-planning documents prepared by the company (nonlawyers) without actually advising the clients of the legal and financial consequences of these documents. He was assisting nonlawyers in the practice of law among other RPC violations.

On page 62 of the same Bar News is an advertisement for an attorney to review trusts and wills by e-mail, call client to answer questions, and mail letter stating review is completed . . . hmmm. I wonder if the unfortunate person answering this advertisement will find himself or herself eventually in the Disciplinary Notices.
 
Mary E. Kooistra, Kirkland