January 2000

Letters

I am responding to Mr. Apgood’s column, The Greyhaired Cyberpunk, in the November 1999 issue of Bar News [p. 44]. Mr. Apgood neglects to mention that, at least at the federal level, the decision not to prosecute might be made for reasons other than not understanding the subject matter. As just one example, the data or system the hacker was accessing, or the technology used to identify the hacker, may have been highly enough classified that the government was not willing to expose the information in a courtroom. For an investigation to be justified, the result need not always be a criminal conviction but can simply be to stop the hacker.

I was surprised by Richard Eymann’s "President’s Corner" article in the October issue of Bar News. As the new President of the Washington State Bar Association, I expected Mr. Eymann to be more inclusive. I certainly expected he would be less partisan than when he was president of the Washington State Trial Lawyers Association. I am disappointed on both expectations.

Just as Mr. Eymann laments how we lawyers endure the "humiliation of the distortion, unfair accusation and unwarranted attacks" from "pea-brain mentalities who brainwash listeners into thinking that all lawyers are bad," Mr. Eymann’s own stereotypes and ad hominem attacks reflect an equally insensitive and misleading view — a view beneath the dignity of his office.

For example, Mr. Eymann praises lawyers who "courageously represent both unpopular and popular parties in all types of court cases." Great! That’s admirable and passionate advocacy for our profession.

But then, Mr. Eymann excoriates his fellow lawyers who practice law in the property and casualty insurance industry and accuses a majority of the insurance companies of acting to "pollute the jury pool" and "pollute justice itself."

Insurance protects individuals and facilitates commerce, yet Mr. Eymann seems unwilling to recognize that. Some insurance claims are made to defraud insurance companies and their policyholders, yet Mr. Eymann seems unwilling to recognize that. Defending against fraud is a legitimate part of our justice system, yet Mr. Eymann seems unwilling to recognize that.

By discounting or ignoring facts like these, it is Mr. Eymann himself who makes "truth a victim."

Obscuring truth should not be the role of the WSBA President. Unfortunately, Mr. Eymann’s statements do not reflect the "extremely high ethical standards" he admonishes us as colleagues to practice.

Mr. Eymann says we lawyers should "hit a home run for our profession" because we should have "respect for ourselves and for all lawyers who zealously represent the needs of their clients."

That’s what lawyers do when defending against fraudulent insurance claims, Mr. Eymann. They zealously represent their clients. So, next time you "step up to the plate," please bring a healthy serving of respect for all your colleagues! That’s what the Washington State Bar Association has always been for!

I am writing to correct two typographical errors unintentionally inserted by Bar News staff into my last letter, "Jury Nullification Debate Continues" [Bar News, November 1999, p. 12]. These corrections are necessary for clarity.

The correct cite for the landmark exclusionary rule case of Boyd v. U.S. is 116 U.S. 616 (1886). The case was decided in 1886, not 1186 as printed in Bar News.

The third paragraph of my previous letter, which lists the nullification powers of various elites, should have read, "prosecutors have vast powers of prosecutor nullification to refrain from charging a defendant under established laws (see RCW 9.94A.440)" and not "vast powers of prosecutor laws" as printed in Bar News.

It is curious to hear prosecutors make objections against jury nullification, considering that prosecutors enjoy far greater powers of nullification than any juror. Nullification is simply the power to say "no." A juror has power over one case which he shares with 11 others. A prosecutor has unshared power over hundreds of cases.

Even aside from RCW 9.94A.440, prosecutors, especially the elected ones, have an unrestricted and unreviewable power to enforce some laws and ignore others. Laws against cruelty to animals, commonly violated by corporations, university research departments and medical schools, are rarely enforced by prosecutors. See any PETA (People For Ethical Treatment of Animals) magazine for documentation. But prosecutors ferociously and unrelentingly persecute recreational drug users, and even persecute suffering medical patients and their caregivers. See any newspaper for documentation.

Law is not some self-executing perfection that drops down out of heaven. Law is political. It is made by men, and interpreted and enforced by men, for the benefit of some and the detriment of others. Law is a weapon used by the more powerful — the police, prosecutors and politicians — against the less powerful, the rest of us.

Only by sharing power over the law as widely as possible, and that includes sharing power over the law with trial jurors, can we hope to achieve justice.

I read with interest the article by Ken Fornabai, "Defending the Sober Driver" [Bar News, January 1999]. In California, the state legislature lowered the per se standard from .10 to .08 on January 1, 1990. So it has been 10 years that this lower standard has been in place in the State of California.

I will concede that Mr. Fornabai is correct that the new lower standard has raised some troubling issues at trial and has resulted in confusion on the part of juries.

However, in society-at-large no such confusion reigns. In the last 10 years, people in California have become accustomed to the new lower standard, and have changed their behavior accordingly.

Teenagers applying for drivers’ licenses in California have been for years keenly aware of the .08 standard, and many of them scrupulously avoid alcohol altogether. Similarly, young people in their 20s and 30s have adjusted their habits to include the taking of mass transit when they are out celebrating and partying. Many people bring a "designated driver" on their outings, and this driver does not partake in alcohol while at a restaurant or party, and therefore can drive his group home in safety. Still others have taken to walking home, particularly in summer when the weather permits.

Hosts at private parties and get-togethers in California are getting smarter, too. They offer coffee or plain water at the end of the evening, and encourage guests to sit for an hour, sober up, and watch late night TV before driving home. Many hosts insist that obviously intoxicated partygoers sleep over. They offer beds, sofas and sleeping bags to guests.

Some hotelkeepers in California offer free taxis home or discounted hotel room rates to celebrants at wedding receptions or other galas taking place at hotel ballrooms.

So Mr. Fornabai is correct that a low per se standard poses an array of new problems in the courtroom, but in California the law does have the intended effect of changing society’s perceptions of what constitutes responsible behavior.

Legislators pass laws with the goal of changing the behavior of ordinary people. The .08 law in Washington will prove to be a good law if it has an impact upon how people use alcohol and what choices people make in connection with that use.

I object to Len Schroeter’s argument that taxpayer-funded lawyers should be provided for all civil litigation.

Lawyers and everyone else tend to be loyal to the person who pays them, more than to the person supposedly served. As an example, I think that Columbia Legal Services, funded (improperly) by the Supreme Court through IOLTA, is not likely to challenge the authority of the Supreme Court too aggressively. No lawyer paid by a court will aggressively challenge the authority of the court.

The same is true if the lawyer is paid by the legislature or the executive; the lawyer will not challenge the authority of the legislature or executive.

But lawyers do only two things: they ask the court to take money from people, or they defend against it. (They similarly ask the court to take liberty from people.) Often, it is government lawyers asking the court to take money or liberty from someone. Tort lawyers ask the court to order the defendant to give the money of the defendant (who is usually the taxpayer or the public) to them and their client. Defending against all this is what lawyers do. It is important to have energetic, enthusiastic and motivated lawyers to defend against all this, and this means lawyers not paid by political entities. I think the constitution contemplates this lawyer function, because it specifically refers to the right of counsel to defend against the power of state and court, and to the right to a jury, which implies the right to a lawyer to defend civil actions. The jury as a representative of the public is a further bulwark against executive and judicial government. But, I have to admit I have found no support for this role of lawyers either in the Federalist papers or in the Declaration of Independence.

Gerry Spence, in his book "How to Argue and Win Every Time," talks about how the lawyer’s vitality and beliefs show through to the jury even if his grammar is bad, his sentences are distorted, and his voice is cracking. He is right. A lawyer should care about the client, but the lawyer will care primarily about her personal concerns and her financial well-being, i.e., job, if she is paid by someone else. That someone else is necessarily a governmental agency or delegate which always has its own institutional ideology, its own desire to survive and its own desire to increase its power. Therefore every lawyer who works for a public agency such as Columbia will owe her allegiance not to the client but to her employer and to her employer’s ideology, desire for power and desire to survive. Columbia, as a matter of fact, seems to reflect this, directing most of its attention to welfare entitlement and political cases, all congruent with Columbia’s political views.

Public funding of lawyers is a bad way to operate a system of justice. Mr. Schroeter might talk about the helpless litigant, the person who cannot take care of herself. This is really an argument about welfare, a huge topic, but there are a few points that I think bear on this. The availability of welfare surely encourages people to rely on it and not prepare for times of need, and this is not good. Specifically, the availability of welfare discourages people from learning job skills in school, so they can protect themselves in the future, and it discourages parents from encouraging their children to learn in school, so their children will survive and prosper. Also, welfare is based on taxes. A tax which helps one person forces another into poverty, and it encourages people to be tax evaders. This is not good. Each little tax adds to all the other little taxes to make a burden which hurts everyone.

The claim for free legal services is different in different contexts. Some legal interests are different from others. When people seek something such as a dissolution, it is a benefit, or a change of status, which is no different from any other benefit, and so the case saying a party has a right to a free divorce filing fee, which is a user fee, is wrong. This is quite different from being the party that another party is trying to take something — money or liberty — from.

Divorce, where each party tries to take something from the other: the best case for public paid civil lawyers. What is best in divorces? Judges are elected and the voting public cares about a fair verdict if there is a disparity between lawyers and unrepresented parties. Most judges do try to accommodate unrepresented parties, partly because they have to answer to the electorate. A person who goes to school will be better able to represent herself in court, so here again is the inducement to go to school and learn. In general, people have far better survival skills than Mr. Schroeter gives them credit for. In many cases, there is an estate which can be used for fees, as long as this option is not regulated out of existence by the WSBA. Also, most people have the ability to consult a lawyer even if they cannot hire one for court. Also, the executive branch can intervene in divorces and participate as needed to protect economic and child welfare interests, and in fact, years ago, the prosecutor was a statutory party to all divorces.

These are all amelioratives, my word, to the demand for publicly supported lawyers, and yet there is potential for things to go wrong when a pro se opposes an attorney. On the other hand, there is a potential for things to go wrong when the lawyer for the impoverished wife answers to two masters, a political employer and a client. The Bar, by the way, makes it harder to be loyal to the client by promoting a list of politically correct positions which lawyers oppose on penalty of possible disbarment. It is difficult to be loyal to the client in the enthusiastic way I have described above if the client is not only politically incorrect in the eyes of the WSBA, but also in the eyes of the lawyer’s employer.

One could ask the impossible about dissolution: what the quality of justice in divorce was like in the days before Evergreen Legal Services and what it was like during their regency? The answer to that question would tell us whether there should be any kind of Evergreen Legal Services at all.

There is always a sort of moral tone to the call for more publicly paid legal services. I think this is wrong. After all, publicly paid lawyers make a living at someone else’s expense. There is no market system to prove that they provide service worth their tab, and there is no mechanism to prevent them from using their position to promote their personal agendas. The Bar should reject this attempt to diminish the legal profession.Roger B. Ley
Seattle

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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