August 1999

Letters To The Editor

I have just finished reading the article titled "The Becca Bill: The Rest of The Story," [Bar News, June 1999, p. 32] and I feel compelled to share my thoughts with you. First, I'd like to point out that this article simply provides another viewpoint on the sum and substance of the Becca Bill, but by no means encapsulates "The Rest of The Story" as its title presumes. There are several statements made concerning the benefits of the application of the truancy sections of the Becca Bill which, though they may be true in King County, are by no means true across the entire state.

For instance, a discussion of the effectiveness of community truancy boards fails to recognize that, although good in concept, these boards may not always work. Within at least one of the school districts in Yakima County, the community truancy board is made up of the current school board or school administrators. This practice eliminates many of the advantages possible under the community board system. This is especially harmful in areas, such as the one in which I work, where an Indian community is present and no representative of that community sits on the school board or works within the school's administration. This creates a situation in which no Indian representative is present on a "community" board for a community which is made up primarily of Indian people.

A similar but more egregious situation arises when Indian children from a primarily Indian community are petitioned into the white-dominated Superior Court system for truancy. They are faced with white judges, white school personnel, white prosecutors and white public defenders, not a single Indian face in the lot. They then are given the opportunity to obtain counseling from white counselors, or go to treatment in a white-dominated treatment facility. This can cause feelings of isolation, anger, insecurity, rebellion, and self-hatred in the child, which are not conducive to increased school attendance.

It is also interesting to see that no mention has yet been made within your publication concerning the application of the Becca Bill in Indian Country, and the legal and practical complexities this creates.

Finally, what also frustrates me about this article is its west-side centricity. It is often the case that Bar News provides news tied solely to the Seattle area, and I suppose that I should write off this article as just another example of this bias. However, when one is going to rely solely on information pertinent to or based upon west-side activities, that bias should be made clear within the article itself. This article does not consistently do so. On page 35 the authors state, "[a] juvenile may be detained under the statute but, in fact, it has always been applied as a last resort and under extraordinary circumstances." I presume the authors meant to say that in King County alone this has been the case; however, their statement is much farther-reaching, and is misleading. The title of the article itself is awfully presumptuous. No attempt is made by these authors to discuss the application of the Act in any other county except King County, and yet they presume to tell "The Rest of The Story."

I value this article for what it is worth: a view of the benefits of the Act as it is implemented in King County, from the perspective of its implementers. It is unfortunate, however, that the authors failed to recognize the limits of their own views and experiences.

We are writing in response to the article "The Becca Bill: The Rest of the Story." We never intended to suggest in our article ["The Becca Bill: Is the Cure Worse than the Disease?" Bar News, April 1999, p. 19] that the proponents of the Becca Bill do not have the best intentions in terms of helping status offenders. We disagree that jail is an appropriate means of helping children. Our intent was to provoke thought and discussion about problems that arise when non-criminal children are jailed, and to suggest possible alternatives.

The authors of "The Rest of the Story" contend that children are jailed only as a last resort, under extraordinary circumstances. The Governor's Juvenile Justice Advisory Committee Report, Study of Status Offenders in Detention, 1999, proves otherwise: "[T]he number of detentions [of status offenders] rose from 222 in 1993 to 2,044 in 1997 — an increase of more than 900 percent. The number of youths detained during these same years increased from 198 in 1993 to 1,349 in 1997 — an increase of nearly 700 percent" (at 6). The sheer number of children jailed illustrates that detention is not used as a last resort in extraordinary circumstances but in fact is often used by frustrated commissioners who have no other resource at their disposal.

The authors also contend that children usually spend a very brief time in detention. The length of incarceration varies widely by court and county. "Courts in six jurisdictions sometimes impose periods of detention in excess of 30 days per hearing" (Id. at 8-9). Prior to public defenders raising the issue that the Legislature expressly limited the detention time which the court can impose at any one contempt hearing, King County commissioners were imposing detention in excess of seven days at one contempt hearing by imposing up to seven days for each violation and "stacking" the days. While King County now agrees this practice violated the statute, commissioners in other counties continue to "stack" time.

The authors also contend that "it is not the general practice of DYS to house truants with criminal offenders." DYS has no facilities to "house," i.e., jail, truants other than the juvenile jail. The "solution" of avoiding commingling by isolating a status offender in his or her cell for the entire day is not acceptable.

Some counties have sued the state to recover the high costs of paying for the huge increase in the detention population as well as court costs associated with the Becca Bill. We understand that the county may institute a Truancy Class Program and applaud this effort to divert these cases from court and avoid incarceration. Because the Legislature is reducing funding dramatically, King County has proposed to more than double the caseloads of counsel in at-risk youth and CHINS cases. This cost-saving measure would eliminate the effectiveness of counsel for these children.

We should spend our limited resources on services for children and families. We agree that truant children should not be allowed to fall through the cracks. Quality schooling with small classes, where attention is paid to each child, is a more effective way to combat truancy than jailing children who have committed no crimes.

I am writing in regard to the article in the June 1999 Bar News defending the Becca Bill. In defending the provisions of the bill allowing incarceration for failure to follow a court order, the authors attempt to justify the incarceration provisions by asserting that actual incarceration in a standard detention facility is a rarely used punishment. However, the article contains serious inaccuracies by assuming that Becca is applied all over the state the same way it is being applied in Seattle.

The article states that "[a] juvenile may be detained under the statute but, in fact, it (detention) has always been applied as a last resort and under extraordinary circumstances." That language may be accurate as to how the Becca law is implemented in Seattle, but just the opposite is true here in Wenatchee. In Wenatchee, a juvenile found to be in violation of an At-Risk Youth or truancy order is sent immediately to detention as a first resort, rather then a last resort. It is only under extraordinary circumstances that a juvenile is not immediately incarcerated for any contempt violation, no matter how minor.

The article further justifies the incarceration provisions of the Becca Bill by discussing the alternatives to detention used in King County when detention is ordered, such as day programs and non-secure facilities. The article also states that truants are not being locked up with criminal offenders. Again, in Wenatchee the opposite is occurring. Children are being locked up in standard detention facilities with criminal felony offenders, and no separation between them.

Finally, the article states that children sentenced to detention are there for a brief time, and are given an immediate opportunity to purge their contempt. Again, that may be how the law is being implemented in Seattle, but is certainly not what happens in Wenatchee. In Wenatchee, children are almost always locked up for a minimum of two days and a maximum of seven days (depending on the amount of previous contempt findings) with no opportunity to purge the contempt, meaning they cannot write an essay and get out of detention, but must stay the full term. The juvenile court in Wenatchee has ruled that these determinate sentences are constitutional.

The article states that "implementation of the [Becca] law has never been about detention." In fact, how the law is implemented depends entirely on what county the law is being implemented in. In Wenatchee, where implementation of the law is all about detention, children who violate Becca orders are sentenced to detention for days at a time for missing a couple of days of school, or not following their parents' rules, such as failing to do their chores or coming in past curfew.

The Becca laws are statewide laws, and should be implemented in a uniform manner throughout the whole state. Currently, whether a child will spend days in detention for violating a court order under Becca depends not on whether or not the child violated a court order, but depends on the county the order was entered in. King County has taken what appears to be a rational humane approach to the implementation of the Becca laws by creating alternatives to detention, and not criminalizing matters that are clearly not criminal. On the other hand, here in Wenatchee, detention is consistently used as the primary remedy for violation of a Becca order.

Clearly, there is a problem with implementation of the Becca Bill, and I would hope the courts and/or legislature will work to correct the problem.

I saw the following article about Northern Ireland on the Internet.  Since you've been publishing information about "lawyer bashing," I thought my sisters and brothers in the Bar would be interested in the different perspective this writing presents. The circumstances of the recent murder of Rosemary Nelson speak to its authenticity.

Police "risking lawyers' lives"
By Steven McCaffery 6/99

A Police Federation claim that some lawyers and human rights groups are linked to an "evil conspiracy" against the RUC (Northern Ireland Police) may put lives in danger, a leading US group has said. The American-based Lawyers' Alliance for Justice in Ireland, together with the law societies of Northern Ireland, England and Wales has expressed concern over the comments made by federation chairman Les Rodgers at its annual conference in Newcastle Co. Down yesterday. Mr. Rodgers received loud applause from delegates when he claimed the RUC was the victim of a smear campaign aimed at influencing the Patten Commission on the future of policing.

He said that over the last year there had been a "concerted and blatant campaign, an evil conspiracy to vilify this police service. It is being co-ordinated by Sinn Fein," he added, "and being wittingly and unwittingly assisted by certain lawyers' groups and academics." Ed Lynch, national co-ordinator of the Lawyers' Alliance, said they echoed remarks by Conservative MP Douglas Hogg who said certain lawyers were "unduly sympathetic" to paramilitaries — just weeks before the loyalist murder of solicitor Pat Finucane.

Mr. Lynch said: "We have nothing against the RUC, there are a lot of good people in the RUC...but this is a shocking statement. To me it is really a shame. It is a new low.

"This type of language, this loose language, this demonising of lawyers, people who have had the courage to speak out, I am very concerned that it is almost giving an implied approval to take physical action to harm people who criticise the RUC."

But a spokesman for the federation chief said this was a "nonsensical and inflammatory" interpretation of Mr. Rodgers' remarks. In response to claims that the comments may blacken lawyers' reputations, the spokesman added: "If the cap fits then people should wear it. Mr. Rodgers directed his comments at no particular body, but those who understood the import of his remarks will know exactly what he meant." But the remarks were also rejected by the Law Society of Northern Ireland, which recently backed calls for inquiries into the murders of Pat Finucane and Rosemary Nelson.

"Many diverse groups of lawyers, both in Northern Ireland and Internationally, have supported calls for full inquiries in response to the murders of two members of the Law Society."

The "access to justice" issue of the May Bar News raises issues which deserve more discussion. Supporters of "access to justice" encourage reliance on welfare and encourage public employment for lawyers. Neither of these is necessarily a good idea.

Of welfare there are two models: the Democratic and Republican. The Democratic model asserts that large portions of the population are helpless and must receive welfare benefits in order to survive. The Republican model asserts that welfare recipients are capable of supporting themselves, should not be allowed benefits, and would support themselves if only they were taken off welfare.

Neither model is totally correct. But I believe that if you can keep a person on welfare for 20 years, you can ruin them forever. Looking across the street from the King County Courthouse, you will see individuals who have been ruined forever.

This is intuition, not proof based on examination of evidence.

Almost one-half of the budget of Columbia Legal Services is dedicated not to providing basic services but to providing more welfare entitlements, often by "test" cases. I do not think this provides a benefit because, among other things, the legislature and the voters are more qualified to determine the level of welfare benefits than the courts and legal services lawyers. And, I do not think that adjusting welfare benefits provides anything more than short-term money to the chronically poor.

My point is that one should not unquestioningly accept the claim that more money is needed to provide free counsel for the poor.

I also mentioned the benefit to lawyers. Columbia lawyers are paid by the taxpayer and by the State Supreme Court, in that the court administers the IOLTA program. This means that Columbia lawyers have a structural conflict of interest because they cannot resist the court on behalf of their clients without fear of offending the court and losing their court stipend. A lawyer cannot be paid by a court.

Such a lawyer fails to meet the constitutional requirement of independence. Even if legal-services lawyers are paid only by the legislature, there is still a conflict, because the lawyers will tend to assert positions sympathetic to those of their political supporters: Very few legal-services lawyers counsel their clients on the value of independence and the importance of responsibility. Very few legal-services lawyers respond energetically to their clients' wishes (I think) in politically charged cases, such as cases opposing gay parents, especially in light of the WSBA's proposed rules forbidding discussion of these issues.

As far as money is concerned, legal-services programs provide employment and political influence for lawyers. We do not know the actual amounts spent by Washington legal-services lawyers, but $10 million in new money provides lawyers a great deal of employment, not easy to come by, especially for those with no background in client-based practice. The advocacy for public lawyers is not totally unselfish.

Too many taxes are not good. Taxes are said to be a necessary evil. Our state alone spends about $10 billion per year, which averages out to about $5,000 per taxpayer per year, and the Federal government spends $1,800 billion dollars per year, which averages out to about $18,000 per taxpayer. Other government budgets take even more money. Many people do not think of the new $10 million for public lawyers as new money on top of the $1,810 billion and more, already spent. Every increase in taxes discourages poor people from emerging from poverty into the productive economy, either as entrepreneurs or employees.

The reciprocal of the structural conflict of interest of Columbia lawyers is the conflict of the court itself. The Supreme Court must be neutral and disinterested toward all lawyers. If not, it is probably not a constitutional court. Yet, the court's Access to Justice Board sponsors lawyers and policies which come before the court. The Supreme Court sponsors and pays Columbia and most public lawyers through the IOLTA program, and supports the Access to Justice Board. This expresses support for Columbia lawyers, "access to justice" lawyers, and their policies, and puts opponents of the Access to Justice Board or of any public lawyer in the position of arguing to a court which has already endorsed its opponent and their policies. This is not proper.

The Supreme Court must remain neutral not only toward lawyers but also with regard to policy issues. When the Supreme Court, or the WSBA, its administrative agency, takes a position on an issue, and this includes the merit of entitlements or of methods of delivery of legal services, there is a conflict of interest which precludes the court from ruling on a case raising a related issue. This incidentally applies in a similar way to the regulation of lawyers by the court. The court cannot be a legislature and a court — it cannot create rules and then rule on their constitutionality.

The Supreme Court should divest itself of its interest in lawyers, and the Bar Association should remove itself from consideration of welfare and entitlement issues.

Government Lawyers Especially Noble

We would like to commend Randolph I. Gordon for his article defending the legal profession [Bar News, June 1999, p. 24]. Mr. Gordon does an excellent job defending a profession that is often maligned but seldom understood. However, we believe that Mr. Gordon approaches his defense from the perspective of an attorney in private practice. We would like to add to Mr. Gordon's defense from a perspective forgotten in many arguments about the worth of the legal profession: the perspective of a government lawyer.

The valuable services government lawyers provide society are myriad. Government lawyers take criminals off the street, help write state and federal laws, protect children and victims of domestic abuse, and represent schools and hospitals. They work long hours, are often underpaid, and are seldom acknowledged.

Why would anyone, given a choice, take such a job? I would argue that the feeling of serving the greater good is never more direct in the legal profession than in the public sector. This is why there are so many dedicated government lawyers. This is why they endure the long hours, low pay, and the scorn of their peers in the private sector.

So, if you are looking for nobility in the legal profession, please do not overlook the government lawyer.

I recognized the "red flag client" described in Jeff Tolman's June column ["There Were So Many Red Flags, I Couldn't Shut My Door," p. 13]. I do appeals, and even though most of my clients are referred by trusted trial colleagues, many come to me bristling with red flags.

If I used Mr. Tolman's point system to screen clients, I might never conduct an intake interview again. I've declined representation in my fair share of cases, often for the reasons identified by Mr. Tolman. However, I've also found that sharing my honest assessment of the situation that brings an individual to my office, including a clear explanation of what a litigant can — and can't — expect from the legal system, and what I will — and won't — do for him as an advocate, goes a long way toward disarming even the most difficult client of his red flags.

Access to justice should be a concern of each of us as lawyers. If we all reject representation of the "difficult" litigant without recognizing that sometimes lawyers or judges have handed these individuals their red flags, neither the appearance nor the reality of fairness in the legal system will be served.

When I was admitted to the Bar in 1955, one of the subjects that I remember frequently hearing or reading about in various state and local bar publications was the poor image of lawyers as we were supposedly perceived by members of the public. Forty-four years have now passed and not much has changed, except that now we seem to have fallen into a state of ridiculous panic.

One writer recently suggested in a Bar News article that respect for lawyers and respect for the law are one unified principle! Hogwash! Another writer, in the King County Bar Bulletin, wrote that if one were to substitute a racial minority or ethnic group in place of the word "lawyer" in a joke about lawyers, one would realize how terrible these lawyer jokes are! Hogwash again! Being a lawyer is a privilege in which we voluntarily engage, a far cry from being born into a racial or ethnic group.

While I applaud the service that our profession has provided this country from its inception, I will continue to laugh at lawyer jokes and when I hear a really good one, I may even repeat it to others. Are we as a group really so thin-skinned and insecure in our position in society that we can't share a laugh about ourselves?

I've got a problem and that problem is reposed in my spunky, seven-year-old redheaded daughter, Zoe. She exhibits all of the repulsive symptoms of becoming a lawyer.

She has a vocabulary of someone twice her age. More fundamentally, she is able to place shades of meanings on words that President Clinton would be hard-pressed to emulate.

This last February she conducted her first cross-examination of an FBI agent. This family friend had come to my office on his motorcycle. Zoe broke off from doing pirouettes in the parking lot to greet him. He, being concerned for her safety, pointed to the chrome mufflers and stated, "Don't touch the chrome, it's hot." She then began her cross-examination. "What about the mirrors, they're chrome, are they hot? How about the handlebars, they're chrome, are they hot?" Several such questions later the FBI agent adamantly refused to answer her questions and has made his subsequent visits infrequent.

On a recent trip over Stevens Pass we stopped at a McDonald's for lunch. Next to the playground was a sign stating "Not responsible for injury or accident." After enjoying the establishment's playground for the better part of an hour, my daughter, in full form and fashion of a first-year law student, started litigating the sign. "Who is not responsible, the child? the parent? What do they mean by putting that sign there? If my child were injured I know what I would do — I would call the police."

She has learned not only the lawyer's art of not taking statements to mean what they say, but also the lawyer's skill of picking apart statements of others to lend some new meaning of her own choosing to the speaker's words.

In April her school class had a unit on the civil rights movement. Soon after the conclusion of that study she confronted a table full of her male classmates in the school cafeteria by taking a seat there. They announced to her that it was a boys' table and that she was to leave. She replied, "I've got rights. I like it here; if you don't like it then you leave." She and the boys then ate their lunches in stony silence. This was truly skillful lawyering in using knowledge to intimidate those in opposition.

Finally, adding insult to injury, she has taken to chanting a mantra of "A good lawyer knows the law, a great lawyer knows the judge."

All of my lawyer friends have urged me to get her into counseling as quickly as possible. The ever-helpful Bar Association has programs for counseling, but they are limited to those lawyers already licensed. Professional counselors I have consulted do not appreciate the problem to any degree, concluding that these word games are part of natural maturation. Only if such semantical fascination extends into early adulthood should I worry….

I suppose all of this is chickens coming home to roost for a two-attorney-parent household. But it has robbed my daughter of her innocence, even without the obligatory attorney/mother-daughter chat on life's choices, the consequences of choices and all matters deceptive, twisted and lawyerly.

Proverbs admonishes parents to "Raise up a child in the way he should go and when he is old, he will not depart from it."

So I am faced with a minimum of another 11 years of dealing with this budding lawyer. I should have known that I was in for trouble when as a five-year-old she asked me, "Daddy, how did sin come into the world?" The explanation of the first instance of Third Party practice apparently took deep root in her psyche.

I am writing to comment on the proposed changes to RPC 8.4(g) and (h), published in 137 Wn.2d, No. 5 (April 6, 1999). First, I note that the only difference between these proposed changes and those of two years ago is the first three words of the second sentence of proposed rule 8.4(g) (instead of "in addition," it now reads "in that context"). This change apparently seeks to limit the rules' applicability to a "lawyer's professional activities." But let's take a close look at the proposed rule.

The rule seeks to incorporate by reference a "state law" prohibiting discrimination (RCW 49.60) while changing the terms and applicability of that law — e.g., "regardless of the number of persons employed by the lawyer." Moreover, this modified "state law" standard will apply to any and all of a lawyer's "professional activities"—whatever that means. Then the real bootstrapping starts—"In that context, it is professional misconduct to commit a discriminatory act on the basis of sexual orientation if such an act would violate this rule when committed on the basis of sex, race, age, creed, religion, color, national origin, disability, or marital status."

While the proponents of these changes acknowledge the fact that the citizens of this state resoundingly rejected an initiative designed to amend RCW 49.60.180 to add sexual orientation as a protected classification, they now seek to achieve by rulemaking what they could not achieve through the legislative process. Ironically, the proponents urge adoption because "it is the right thing to do" (Comments on proposed amendment to RPC 8.4(g)). The right thing to do!? Do they really want to get into a discussion of what's "right" and "wrong"? Substantively, to many, homosexuality is absolutely wrong. Procedurally, to attempt to force on a substantial segment of the community by rule what the citizenry as a whole has already rejected is also wrong. As the Preamble to the RPCs states, "Lawyers as guardians of the law play a vital role in the preservation of society." What the proponents of these amendments are trying to do is subvert the rule of law and effect a change in the law, despite the fact that the people of this state have just voiced their sentiment to the contrary. This is what "gay pride" is really all about. To hell with the law, we're going to do it anyway.

If that were not enough, the proponents of the homosexual agenda seek to add paragraph (h) to RPC 8.4 "because of concerns by the Office of Disciplinary Counsel about the enforceability of RPC 8.4(g)" (Comments on purpose for proposed amendments to RPC 8.4). While this proposed rule purports to narrow the scope to "conduct in the course of representing a client," it still subjects a lawyer to disciplinary action if a "reasonable person" would interpret such conduct as "manifesting prejudice or bias" on the basis of several protected classifications, including "sexual orientation or marital status." Interestingly, this "reasonable person" standard is explicitly based on an "evolving standard for sexual and malicious harassment." So what is the criterion here — "prejudice or bias"? or "malicious harassment"? and how does that differ from "advancing material factual or legal issues or arguments," which is expressly permitted under the proposed rule? So, if they can't hang a lawyer for violation of a modified state law in connection with his or her "professional activities" under paragraph (g), they'll get him under some "evolving standard" in the course of representing a client for "manifesting prejudice or bias" under paragraph (h).

"Representing a client" is a business enterprise subject to the constraints of RCW 49.60.180, which the vast majority of the people of this state through the duly constituted legislative process refused to amend to include "sexual orientation" as a specially protected classification. Again, the proponents of these amendments would have us ignore the rule of law and set up special rules just for them.

As a final note, one might ask, how does anyone even know whether someone else is a homosexual unless they choose to disclose it? And if kept private, how can any "prejudice or bias" toward them be based thereon? The real impetus behind these rules therefore is not the "right" to engage in homosexual activity per se, but the desire to have their "alternative life style" accepted and legitimized under threat of punishment. The Preamble to the Rules of Professional Conduct extols "the continued existence of a free and democratic society." A fundamental component of a democratic society is majority rule. Let's not be herded like a bunch of sheep by a militant minority bent on achieving through special rules what they have not been able to achieve through the democratic process.

Thank you for considering my input.Brian L. McCoy
Puyallup

Readers are invited to submit letters of reasonable length to the editor. They should be typed on letterhead, signed and, if possible, also provided on disk in any conventional format. Letters may also be sent via e-mail to comm@wsba.org. Due date is the 10th of the month for the second issue following. The editor reserves the right to select excerpts for publication or edit them as may be appropriate. Signatures in excess of three names will be printed only in exceptional circumstances, at the sole discretion of the editor.

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