December 2000

Letters

I recently concluded a case involving catastrophic injuries to a five-year-old child who was hit by a car while attempting to run across U.S. 101 near Sequim Bay State Park. The driver of the car was ably defended by opposing counsel R. Glenn Phillips of Woodinville. There came a point in the case when the interests of the insurance company on the case were not necessarily consistent with that of the defendant driver, placing Mr. Phillips in a difficult situation. Displeasing a claims adjuster can mean the loss of future business for an insurance defense lawyer. However, Mr. Phillips did what a lawyer should, protecting his client's interests zealously, as set forth by our Supreme Court in Tank v. State Farm. I am certain that it was not lost on Mr. Phillips that in so doing, he would not get assignments from that particular insurance company again. Whenever I see situations like this in my practice where an attorney places principle above the pressures of the marketplace, it reinforces the considerable pride I take in being a member of this profession.

I applaud President Peterson's editorial in the October 2000 issue of Bar News, which argues forcefully that we as attorneys have many reasons to be proud of our profession. However, I believe a sour note was introduced into this symphony when he cited Professor Anita Hill as one of his positive examples. This example is problematic for several reasons.

First, in giving her testimony she was acting in the role of victim rather than as an attorney, so it is difficult to see why attorneys have any special reason to be proud. Second, the purpose of her testimony was to accuse a fellow attorney of misconduct, so this is more a reason for attorney humility than for pride. Third, if one accepts her testimony as accurate and complete, one is led to ask why she did not make these accusations contemporaneously with the misconduct, rather than allow 10 years to lapse. While her defenders argued that the misconduct was so traumatic to her that it was difficult for her to come forward, I believe that she, as an attorney in the Equal Employment Opportunity Commission, had an explicit duty to her fellow female co-workers to file a formal complaint against someone who she believed was abusing his position through verbal sexual harassment. Instead, she looked after her own career interests rather than fulfill her obligations as an attorney to the law and to the public she was sworn to serve. As a senior professional civil rights attorney, employed by the federal government to root out unlawful discrimination, Professor Hill has admitted to an utter failure of professional nerve.

The final reason that the Hill example is troubling is that all of the principles of fair play for victims of sexual harassment that it seemed to establish were thrown out the window by William Jefferson Clinton, an attorney who used the entire mechanism of the executive branch of the federal government to shield himself from the natural consequences of his irresponsible use of a White House intern as his personal prostitute, and from his lies under oath in a court of law. A thousand editorials will never compensate, in the public's perception of lawyers, for that one terrible example. It would raise the reputation of the legal profession immensely if he resigned from the profession he has abused so badly and admitted he is not honest enough to be an attorney. But that would require him to tell the truth.

Reading Jan Peterson's editorial (October Bar News, p. 15) and Maria Diamond's letter (October Bar News, p. 7) in defense of contingency fee lawyers reminded me of several points.

First, an economy works when people work and make things — bricks, ships, clothes, cars and so forth. The more taxes increase, the less people are willing to work and produce things. When taxes reach 100 percent, no one works: communism. The more regulation restricts the way people work, the less people will work, because it becomes progressively more difficult to produce things and earn a living. And the greater the threat of destruction, as by crime, act of nature, confiscation, and of course, personal injury litigation, the fewer the number of people who are willing to take the chance of making something — bricks, ships, clothes, cars and so forth.

Contingency fee lawyers damage the economy in all these ways. They threaten business with destruction: Johns Manville. They add to regulation because court decisions are an overlay of regulation, and an unpredictable regulation at that, beyond what agencies and legislatures do: birth control litigation. They add to your taxes: insurance premiums paid by industry and you. WSTLA litigation is equivalent to a tax because it is a direct and indirect burden imposed on the public by the court for the benefit of WSTLA lawyers and their clients.

Now I think most plaintiff lawyers think their recovery comes from the tooth fairy, but it isn't so. It comes from the public, kids buying their first car, struggling families, people driving long distances to work, and, of course, you and me, all of whom pay for insurance. The rest comes from stockholders and bondholders and employees, who again are directly or indirectly you and me.

I think WSTLA lawyers think each case is no burden on the public because it is small in proportion to the economy. This is not always so, but even when the recovery is relatively small, calculus tells us that tiny increments that approach zero add up to large and visible amounts. Plaintiff lawyers consume a significant part of the American economy.

Plaintiff lawyers claim they do good because they induce the courts to act as legislatures. They do do that, but this is wrong, because public policy should be set in the legislature which is lobbied by all the interest groups. The legislature is directly accountable to the public. Courts are lobbied only by lawyers for the two sides. The public is not represented. To use Jan Peterson's example, if children's clothing is to be regulated for fire retardation, it should be done by the legislature, not by the efforts of a WSTLA amicus curiae committee or a WSTLA lawyer. The legislature can consider lobbying by the manufacturer, unions, consumers, economists, retailers, competitors and everyone else, not to mention administrative agencies. Most important, the legislature can be recalled by the public if they do not like the decision. Judges are elected only in state court, and it is difficult for the public to hold accountable an individual judge for a "legislative" decision.

Jan Peterson characterizes plaintiff PI lawyers as heroes. They are not heroes, because all of them work for money and some of them become wealthy taking money from the public and taking policy issues from the legislature where they belong, into courts where they do not belong.

In her letter to the Bar News campaigning for Al Gore, Maria Diamond of WSTLA objects to corporate lobbying. Corporations create most of the bricks, ships, clothes, cars and so forth that everyone uses. WSTLA lobbies as aggressively as it can and tries to place its "stalwarts" on the board of the Bar and in the courts. I have heard that WSTLA and ATLA lawyers are the biggest single money contributors to Al Gore's campaign. It is hypocritical for WSTLA to complain about corporate lobbying which is, after all, protected by the First Amendment.

These are important issues. They should be debated. The Bar News should not be a forum for contingency fee lawyers, Columbia Legal Services, Al Gore's campaign, activist courts or any other partisan point of view.

…and the letters published in this issue constitute another view in the ongoing debate. — Ed.

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