August 2000

Letters

Local Rules or "Loco" Rules

Attorneys are spending an ever-increasing portion of their time trying to comply with the various local rules of various counties. The proliferation of local rules in recent years makes attorneys feel like they are practicing in 39 different states in Washington. The local rules book is twice as thick as the state rules book, and the state rules book has all conceivable rules in it from admission to practice rules to appellate rules.

One could ask what it is that would allow for such a discrepancy in rule making among the various counties. I will tell you. We have come to value process over people. I know that some do not believe this and actually take exception to my brash opinion. But one only needs to look at how many rules emphasize form over substance, and how many rules require a process-oriented approach to the delivery of our only product — human dignity.

What does this all mean? What it means is that there is a reason it is not supposed to be this way; it is illegal and unconstitutional to have anything less than a "uniform" set of rules to operate under in the various counties of this state.

We will start with the basics. Article IV, Section 24 of the state constitution provides that "The judges of the superior courts shall, from time to time, establish uniform rules for the government of the superior courts.'' In l928, the Washington Supreme Court, in interpreting this provision and RCW 2.04.190, held:

It seems to us that the purpose of Section 24 was to insure uniform rules of minute procedure, and that it should be construed, not as a grant of power to make broad and general rules, but as a limitation upon the courts requiring that the customary rules having to do with the minutiae of court government should be uniform in character so that attorney and client should not be hampered by finding petty rules in each court differing according to the views of the particular judge who presided over the tribunal. That the superior courts have also conceived that this is the correct view may be demonstrated by an inspection of the rules adopted by the judges of the superior courts from time to time, nearly all of which have for their purpose a uniformity in the details of procedure, so that trials and hearings may be had with the least inconvenience to court and counsel.

State v. Superior Court for King County, 148 Wash. 1, 10, 267 P. 770 (1928). See also RCW 2.08.230. It seems that this holding was actually a prediction of things to come. To a large degree we have become "hampered by finding petty rules in each court..."

However, the analysis does not end here. RCW 2.16.010 created the Association of Superior Court Judges. RCW 2.16.040 provides as follows:

At its annual meetings, pursuant to Section 24, Article IV of the state Constitution, the association shall have power to establish uniform rules for the government of the superior courts, which rules may be amended from time to time.

RCW 2.04.190, the statute interpreted in State v. Superior Court for King County provides as follows with regard to the powers of the Supreme Court, not superior courts.

The Supreme Court shall have the power to prescribe, from time to time, the forms of writs and all other process, the mode and manner of framing and filing proceedings and pleadings; of giving notice and serving writs and process of all kinds; of taking and obtaining evidence; of drawing up, entering and enrolling orders and judgments; and generally to regulate and prescribe by rule the forms for and the kind and character of the entire pleading, practice and procedure to be used in all suits, actions, appeals and proceedings of whatever nature by the Supreme Court, superior courts and district courts of the state. In prescribing such rules the Supreme Court shall have regard to the simplification of the system of pleading, practice and procedure in said courts to promote the speedy determination of litigation on the merits.

RCW 2.04.210 provides that "RCW 2.04.190 through 2.04.210 shall not be construed to deprive the superior courts of power to establish rules for their government supplementary to and not in conflict with the rules prescribed by the Supreme Court." Therefore, the superior courts are not powerless to adopt "uniform rules" through the Association of Superior Court Judges. However, there is no authority for each county to adopt its own independent, distinct rules.

Using basic rules of statutory construction and interpretation of case law, the Supreme Court adopts rules for the superior courts. The superior courts may then adopt rules that are supplemental to, but uniform and not inconsistent with, rules adopted by the Supreme Court for the superior courts. These supplemental rules are adopted at the annual meeting of the Association of Superior Court Judges and shall be uniform throughout the state pursuant to RCW 2.08.230, RCW 2.16.040 and Article IV, Section 24 of the state constitution.

I am not trying to offend those judges who are champions of autonomy of the various counties. I am just pointing out that the real consumers of our system — the public — need to have a state system that fulfills the language of RCW 2.04.190, which says it better than I can. It states that rules should have "regard to the simplification of the system of pleading, practice and procedure in said courts to promote the speedy determination of litigation on the merits." Are we doing that at present? I guess reasonable minds can differ, but the law is the law and I didn't make it. I am just the messenger.

I am not suggesting a lack of good intentions or an intentional disregard for the law by those who believe in the right of each county to make their own rules, but in that same breath I ask, "What respect for laws can we expect from the public if we don't follow them ourselves?" In that sense, does it matter that our failure to adhere to the law is done out of intent or neglect? One can argue that what is good for King County may not be good for Benton County, but until the state constitution is changed, the judges have to adopt uniform rules for all counties.

The July issue of Bar News contained an article written by Barrie Althoff, WSBA chief disciplinary counsel, titled "Ethics and the Law: Changing Fee Agreements." This article addressed the legal and ethical issues implicated when a plaintiff's personal injury attorney who has settled a claim or lawsuit without taking a contingent fee on the client's own insurance company's Personal Injury Protection (PIP) reimbursement later attempts to make a claim against his or her former client's settlement money paid in a class action against the former client's insurer. The class-action claims were based upon the Washington State Supreme Court's decision in Mahler v. Szucs, 135 Wn.2d 398, 957 P.2d 632 (1998), which held that the insurer that received reimbursement for medical payments it advanced to its insured under the insured's PIP coverage in that case was required to pay a contributing share of the insured's attorneys' fees incurred in prosecuting the tort claim.

When Mr. Althoff wrote the article that was published in the July Bar News, he did not have the benefit of Informal Opinion #1913 that was very recently issued by the WSBA Rules of Professional Conduct Committee. The suggestion in Mr. Althoff's article that an attorney who wishes to make a claim against a class-action settlement proceeds write a detailed letter of full disclosure to his or her former client is inconsistent with Informal Opinion #1913. For the full text of this opinion, see page 48 of this issue.

Our president, Richard Eymann, rightly urges us to be less adversarial and more civil in the practice of law. He blames the waning of civility partly on "a growing polarization within the Bar" as we enter specialized fields of practice and find ourselves battling lawyers who advocate for the other side.

Excuse me, but isn't this the same Richard Eymann who began his term by writing a column attacking insurance companies and their lawyers? And isn't this the same guy who's been pushing a highly controversial and divisive proposal to revamp the Board of Governors? If Mr. Eymann is worried about things that polarize membership, he could start by looking in the mirror.

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