April 2005

Letters to the Editor

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 350 and 500 words in length, and that they be e-mailed to the editor at tradelaw@hotmail.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.

More on pit bulls

Editor’s note: President Ron Ward’s February 2005 Bar News column on aggressive lawyering generated a large and mostly favorable response from readers. Here is a sample of some of the comments received by  members:

“It’s about time we had a president who tackled the real reason for the public’s dim view of our profession.”

“. . . [T]hese low-life lawyers not only damage the public and judicial perception of the law profession, they also damage other lawyers in a way beyond the profession. I know, I am one, and personally know of others who have either abandoned the profession and/or have left Washington for kinder environs.”
 
“In a small community, your reputation on how you deal with others is paramount. I agree with your conclusion about client result, especially the business client. What is so bothersome and illogical is that our hourly billing system tilts toward rewarding the inefficient.”
 
“I felt compelled to let you know what a profoundly important point you make in your February column . . . . I thank you for so eloquently describing the problem as well as suggesting the solutions for elevating our profession.”
 
“Lawyers behaving badly are a major source of stress and dissatisfaction with other lawyers . . . the message really needs to come from lawyer leaders. Thank you for speaking up and setting a positive example.”
 
“I fear my head was nodding so much in agreement that it nearly fell from my shoulders when I read your article . . . .”
 
We also received a differing view, which follows.

I read with interest President Ward’s lengthy condemnation of “pit bull” lawyers and his suggestion that we all need to behave in a more civil manner. First of all, I agree that all attorneys, including judges, should treat each other with respect unless and until there is a reason to abandon that approach. However, as a criminal defense attorney who has actually been called a “pitbull on crack” in the courtroom by a disappointed prosecuting attorney, I must provide some defense of “pitbull” attorneys.

In general, our state is blessed with prosecuting attorneys who demonstrate their integrity consistently and judges who endeavor to be fair and impartial. However, the reality is that some criminal prosecutions are just plain “wrong” and some judges are just plain “unfair.” All I need to say is the word “Wenatchee” to substantiate this point.

This state will be forever stained by the tragedy of the wrongful prosecution of more than thirty poor, illiterate, and disenfranchised citizens in the city of Wenatchee. This tragedy occurred only because of the “good old boy” system operating in Wenatchee at the time. There was no zealous representation of defendants until private attorneys, “pitbulls,” became involved and did a thorough investigation of the tragic circumstances that led to these wrongful prosecutions. Many of the original attorneys, prosecutors, and judges were more concerned about being polite to each other and “processing” these cases than justice. Indeed, the local newspaper played into this tragic scenario by failing to question the obvious flaws in the prosecutions. Only after independent lawyers got involved in this case, as well as the New York Times and the Wall Street Journal, was the true nature of these prosecutions revealed. If there were more “pitbull” lawyers in Wenatchee, this tragedy would have never occurred.

Everything happens in context. I was accused of being a pitbull attorney by a prosecuting attorney who lost a high profile case and was licking her wounds. The fact of the matter is, the prosecution was wrongful and the judge involved in that case was more concerned with being politically correct than being legally correct. My behavior was extremely aggressive and, in the end, effective if justice is the goal.

Imagine yourself being charged with a major felony offense and you are innocent. Do you want a “pitbull” on your side or Mister Rogers?

John Henry Browne, Seattle

Proposed RPCs a nightmare

Who says you cannot legislate morality? With its newly proposed amendments to the Rules of Professional Conduct, our Washington Supreme Court (March 2005 Bar News, p. 36) has demonstrated that it firmly believes that we can and must legislate morality. Pity us attorneys if our moral compasses are so far off course as to require the RPCs to be reworked as extensively as proposed. Is our profession really in such poor shape that it requires so many amendments to our previous ethics code? I went cross-eyed trying to get through all the amendments.

W. Theodore Vander Wel, Bellevue

More on labels

A letter I wrote, published in the October 2004 Bar News, was referenced in another letter published there in January’s issue. The January letter evidenced, once again, my less than perfect ability to communicate clearly.

In and of itself, another example of my limited communication skills does not compel me to respond. Unfortunately, though, in this instance the difference between what I meant and what was understood vary so greatly, and the issue is one I consider so important, that I must reply and try to clarify the intent of my earlier comments.

My October letter commented on an August Bar News announcement 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.” My concern is that the position to which Judge Martinez was appointed was “federal court judge” not “Hispanic federal judge” and referring to it that way tended to minimize the appointment. His cultural background and personal history are important, but they do not define the high position he has attained.

The January letter to which I now respond states, “Mr. Oliver took exception to the mention of “Hispanic” as being relevant . . . .” That is where my intent diverts from what at least one person (I’m sure if there was one there were others) understood as my message. Judge Martinez’ Hispanic history is certainly relevant to the story of his accomplishment as a federal court appointee. I do not know Judge Martinez, nor do I know enough about him to know just how his cultural background has affected his life. I do, however, know enough about the history and present-day attitudes of this community, state, and country to know that it has been a factor in determining who he is. It cannot have been otherwise. I am also sure that being Hispanic in this state has at times worked against Judge Martinez in pursuit of some of his goals. People of Hispanic ancestry, as well as others, sometimes have to negotiate roadblocks in this society that Anglos do not. My point is still that the position to which he was appointed was federal judge, with the same responsibilities and duties as every other federal judge. With those responsibilities and duties come recognition and status. Those should also be the same for Judge Martinez as for other federal judges. Labeling him Hispanic federal judge subtly puts him in a different category than all those other federal judges before him, robbing him of some of that recognition and status. That should not be.

As for attorneys from various ethnic groups forming associations to help themselves and others (the main topic of the January letter to which I respond here) I have no problem with that, but it is not the subject of this letter.

Gene Oliver, Seattle

Road ice article needs to be taken with a grain of salt

I was surprised to find my professional colleague and prominent plaintiffs’ attorney, Keith Kessler, writing an article about chemical de-icers for roadways. (Anti-lcers: Is it Time for Courts to Recognize Municipalities’ Use of Anti-Icers for Roadway Ice Control?, Bar News, February 2005). I thought it was unusual that an attorney would be offering a treatise on roadway maintenance issues, and touting the use of chemicals on public roads. But then it all made sense. I learned that Mr. Kessler and the Plaintiffs’ Bar presently have a Petition for Review in the State Supreme Court regarding one of the trial court decisions referenced in his article. Mr. Kessler was apparently using the Bar News to present some early arguments to his audience for why there should be a change in the case law.

But now to the more fundamental problem: taking science lessons from an attorney. Mr. Kessler wades into an area where there is considerable controversy and plenty of good reasons why case law should not force local cities and towns to cover our public streets with potentially dangerous chemicals. The anti-icers referenced by Kessler — calcium chloride, magnesium chloride, and sodium chloride — are controversial to say the least. In touting these chemicals, Mr. Kessler is aligning himself with outfits like “the Salt Institute” and the Dow Chemical Company. These outfits would gladly sell an abundant amount of chemicals to local governments if permitted, and would welcome a Supreme Court decision forcing local towns to use the chemicals.

There may, however, be good reasons why we don’t want these chemicals poured on our roadways. Chlorides, of course, are chemical ions. When poured onto reinforced concrete, chloride ions migrate through the paving surface to reach the metal structures below. The chloride ions bind with reactive metals, causing a chemical reaction that expands and creates voids in the pavement structure. This leads to potholes, pavements falling, and eventually a complete destruction of the pavement surface. Anyone who lives or works around saltwater knows the effect it has on metal.

But that’s not all. These chloride chemicals are readily soluble in water. That means they will wash off of a roadway surface and into adjacent waterways, streams, and wetlands. Sodium chloride is highly soluble in water, will combine with soil particles, break down soil structure and decrease permeability. Calcium and magnesium chloride are soluble in water and can exchange with heavy metals in soil, potentially releasing them into the environment.

I do not believe that Mr. Kessler has no concern for our highway infrastructure or wants to expose us to dangerous chemicals. I do believe that he will try to advance arguments that will serve his client’s interests. But courtrooms have typically been a bad place to resolve scientific disputes. Just ask Galileo about trying to convince a court that the Earth revolves around the Sun. He lost. I trust the Supreme Court will exercise appropriate skepticism about the broad scientific claims made in the Petitions for Review.

Andrew G. Cooley, Seattle


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