October 1999

Letters to the Editor

Correction to McCarthy Article

Editor:

By my inadvertent omission of a footnote, I overstated the extent of tribal exclusion from federal full faith and credit man-dates. "Native Justice: A Look at Tribal Court Jurisdiction in Washington State" [Bar News, August 1999]. Tribal courts are included in neither the Full Faith and Credit Clause of the United States Constitution, art. IV, sec. 1, nor the implementing statute, 28 U.S.C. sec. 1738. See Wilson v. Marchington, 127 F.3d 805, 809 (9th Cir. 1997). Through subsequent statutes, however, Congress has extended full faith and credit to tribes for certain types of actions, such as child support orders. See, e.g., 28 U.S.C. sec. 1738B. I apologize for any inconvenience.

Editor:

For the most part, I appreciated Randolph I. Gordon’s article, "The Lawyer as Hero: A Pride of Lions, a Justice of Lawyers" [Bar News, June 1999], a piece valuable for its potential to enlighten lawyer bashers who are receptive to "truth, justice, and the American way." I was gratified that Mr. Gordon did not dwell too long in the turbid waters of joyless duty. We have no duty to placate envy-ridden churls who, in Ayn Rand’s words, "hate the good for being the good." And if we derive pleasure from our charity, we deserve that pleasure as richly as any other earned reward. Honest lawyers, like any other honest citizens, deserve the rewards of their efforts, even if they choose not to give their services without compensation. Mr. Gordon is refreshing because he modulates the noblesse oblige mien the Bar Association promotes ad nauseam of our "privileged" position and our "duty" to others as a means of justifying that position.

Lawyers work in a marketplace of values as all businessmen do. Mr. Gordon’s historical notes and data are superb; however, pro bono work is not the principle reason lawyers deserve respect. Charity should not be invoked as a moral defense. If charity is a moral defense, then lawyers become the slaves of their invidious detractors in order to procure esteem that will never be forthcoming. If charity is compelled, it is no longer charity. It is a form of exculpation for success.

Lawyers originated and continue to defend the rule of law, without which we would enjoy none of the benefits of western civilization, which translates effectively into life itself. We endure certain rigors to do this: law school, the bar exam, and demanding work; our moral standing certainly should be no lower than that of, say, a college professor, who is not asked
to give away his services in order to deflect his community’s scorn. Certainly all individuals deserve respect for their virtues, but there will always be haters who renounce virtue. We can hope that individuals also exist who, when presented with palatable evidence, are willing to acknowledge the integral alliance between lawyers and a free society based on the rule of law. I intend to share Mr. Gordon’s article with several tasteless japers.

Editor:

Bigotry in all of its forms is wrong and always has been, but the theory of our Constitution is that citizens can express bigoted views. Certainly, in the conduct of our profession, we can penalize those who act and speak in a bigoted manner and brand their speech or conduct unprofessional. However, any such penalties must meet constitutional scrutiny. Lawyers are advocates of views popular and unpopular. Lawyers themselves hold views which are as varied as their personalities. The Bar cannot constitutionally force lawyers to think and act in a certain manner unless a lawyer’s conduct actually interferes with the administration of justice. In other words, even a lawyer can be a bigot. Many of us wish no lawyer was, but it’s a free country.

Lawyers have a duty of zealous representation to their clients, even clients who hold bigoted views. If such representation is viewed by a "reasonable person" as "manifesting prejudice or bias on the basis of sex, race, age, creed, religion, color, national origin, disability, sexual orientation, or marital status," the lawyer will be in violation of RPC 8.4 (h).

Justice Holmes reminds us, "we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country." (Justice Holmes’ dissenting opinion in Abrams v. United States, 250 U.S. 616, 630 (1919).) To apply Holmes’ dissent in Abrams to the present matter, a lawyer’s use of speech viewed as manifesting prejudice or bias on the basis of sex, race, age, creed, religion, color, national origin, disability, sexual orientation, or marital status, must pose so imminent an "interference with the lawful and pressing purposes of the law that an immediate check is required" to protect the interests of the state, not the sentiments of some members of the bar. Justice Holmes’ dissent in Abrams is consistent with the position taken by the Supreme Court in Gentile v. State Bar of Nevada, 501 U.S. 1030, 1075 (1991): A lawyer’s speech related to a pending lawsuit may only be sanctioned "if the speech is ‘substantially likely to have a materially prejudicial effect’ on the fairness of the trial." (Cited in Washington Advocates for Constitutional Legal Ethics Brief.)

Will a reasonable person interpret "conduct manifesting prejudice or bias on the basis of sex, race, age, creed, religion, color, national origin, disability, sexual orientation, or marital status," like David Howard’s co-workers did? Mr. Howard was head of the Washington, D.C. Office of Public Advocate, and used the word "niggardly" while speaking about budgetary matters. Niggardly means stingy, miserly. Nevertheless, Howard was forced to make a public apology and resign for using a "racist" term. Columnist Tony Snow wrote: "David Howard got fired because some people in public employ were morons who (a) didn’t know the meaning of ‘niggardly,’ (b) didn’t know how to use a dictionary to discover the meaning, and (c) actually demanded that he apologize for their ignorance."

The proposed change to Rule 8.4 is an attempt by the hyper-sensitive few to impose their tiny tyranny on those who are oath and duty-bound to speak freely and to defend others’ rights to do likewise. Speech can be coarse or comforting, but unless it actually, demonstrably, "poses a clear and present danger to the administration of justice," it cannot and must not be restricted. The proposed changes to Rule 8.4 must be rejected as unconstitutional. I would be ashamed of my profession if its members consented to such a rule.

To paraphrase Justice Janice Rogers Brown of the California Supreme Court, a truth we hold to be self-evident is that a bar association that tells its members what they may say will soon dictate what they may think. "Indeed, I can conceive of no imprisonment so complete, no subjugation so absolute, no debasement so abject as the enslavement of the mind." (Dissenting opinion in Aguilar v. Avis Rent a Car, et al., August 3, 1999.)

The foundation of RPC 8.4 (g) and (h) is inimical to our constitutional heritage. The Bill of Rights guarantees all Americans, even lawyers, certain freedoms. RPC 8.4 (g) and (h) seek to quash these rights for lawyers. Charlton Heston rightly referred to law students at Harvard as those "[w]ho . . . defend the core value of academia [freedom of thought and expression]," and asked them who would defend those freedoms, "if you supposed soldiers of free thought and expression lay down your arms and plead, ‘Don’t shoot me?’" (Winning the Culture War, a speech by Charlton Heston to Harvard Law School, February 16, 1999.) Lawyers must plead to be shot, rather than lay down their arms in the face of foolish and fascist rules.

Editor:

Earlier this year the Bar News carried my letter announcing that the Washington Digital Law Library’s 16-hour free CLE CD had been placed in law libraries and regional public library systems. However, as CLE "crunch time" approaches, it appears likely that the circulating library copies may become unavailable due to the last-minute rush.

To avoid this problem, the Digital Law Library has prepared several thousand additional CDs for distribution directly to WSBA members at no charge. Anyone can get a free CD by sending a request by e-mail to hiskes@freecle.com or by conventional mail to:

Washington Digital Law Library
P.O. Box 1830
Richland, WA 99352

Commonly asked questions concerning the free CLE CD include the the following:

Q. I’ve listened to the CD. So how do I get CLE credit for it?

A. Under the MCLE rules, the only thing you need to do is report how many hours you listened on the triennial CLE affidavit. You do not need to report anything to the Digital Law Library, and the Library does not need to send any confirmation to the WSBA. All programs on the disc have been pre-approved by the WSBA MCLE Department, and the approval numbers are shown in text files on the CD.

Q. Can I get all of my ethics requirement from the CD?

A. Yes, the CD contains in excess of six accredited ethics hours. Under the MCLE rules, the entire ethics requirement may be fulfilled by means of audio/visual materials such as those on CD. You still have to report at least 30 hours of "live" CLE credits. However, all 30 of these hours may concern topics other than ethics.

Q. Does the Washington Digital Law Library offer any other CLE programs?

A. You can also get an accredited trial practice CLE featuring Tom Chambers, that includes on-line access to two ethics CLE programs from the Library’s website at www.freecle.com.

Q. As Dennis Harwick always used to say: "There ain’t no such thing as a free lunch." So is this CD really free?

A. Yes, Virginia. The CD really, really, really is free. There are no hidden charges.

It contains no advertising. All donations are returned. And no salesman will call. The CD is intended to demonstrate how the WSBA itself might someday use CD and Internet technology to provide free CLEs to WSBA members.

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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