June 2000

Letters

Editor:
On March 31, the Board of Governors approved the proposed rules for diversion of less serious misconduct in the discipline system. This was really a historic moment completing the reform of the discipline system that began in 1992.

Back then, our status as a self-regulating and disciplined profession was in jeopardy. The discipline system was one of simple crime and punishment — understaffed, underfunded, largely unresponsive to consumer complaints, with a backlog in cases from three to five years. The system was under severe criticism from the press, the public and members of the profession. When a consumer called in a grievance, it was either investigated and prosecuted to a punishment under the rules, or the complaining party was told it did not constitute a violation of the Rules of Professional Conduct. The delay in investigation and decision to prosecute was years, and even longer to final resolution. There were no alternatives. There was no education, prevention or customer service response affording any satisfaction.

With the Board's action on March 31, the Bar Association has completed a reform that is truly a model for the nation. The inspiration for this change began with former Chief Disciplinary Counsel Lee Ripley, who made Washington the first state to respond to the ABA's offer to evaluate state disciplinary programs. A team of evaluators from the ABA was invited by Lee to come to Washington in 1992 and spend a week evaluating our discipline system. From that, a 47-point report was issued.

In response to the ABA evaluation, the Bar, under President Paul Stritmatter, and the Supreme Court, under the leadership of Chief Justice James Andersen, formed the Joint Task Force on Discipline, which was divided into four subcommittees. I had the pleasure of chairing one of those subcommittees. With the most able assistance of the Honorable Anne Ellington and Chris Pence, we rather boldly outlined the creation of a new discipline system that, in addition to the standard functions of investigation, prosecution and punishment, included:

• Diversion of less serious conduct;

• Fee arbitration;

• Mediation;

• Law office management practice assistance;

• Continuation of the Lawyers Assistance Program;

• Customer service or consumer affairs response or ombudsperson and the use of trained professional investigators.

The goal was not only timely and efficient investigation and prosecution of violations of the Rules of Professional Conduct, but also to provide to our members education, training, dispute resolution, and positive consumer complaint responses. This system will provide solutions to aggrieved consumers, member services that aim toward prevention and education, and dispute resolution. We were pleased when the recommendations were adopted by the Joint Task Force and forwarded to the Bar for consideration. The report was adopted by the Board of Governors and the Supreme Court. Over the ensuing years, each of these segments was slowly made a reality by creating the structures, drafting the operative rules, budgeting the money, and hiring the staff to put them in place. Hopefully, the Supreme Court will approve the diversion rules by the end of this year, at which time the ODC will also have completely cleared the backlog of discipline cases. The Board has now put in place the last piece to the model.

When I first ran for the Board of Governors in 1992, I hoped to do something to restore the status of the profession to one of respect by the public for the keepers of the rule of law in a democracy. I asked to be appointed to the Discipline Committee of the Board of Governors because I felt the first step was to put our own house in order.

It has been my privilege to serve continuously on the Board of Governors Discipline Committee since 1992 in an effort to see this project to its end. From that perspective, I have seen the leadership that made this happen. Credit should be given where credit is due, and in addition to those mentioned previously, particular thanks should go to Wayne Blair and Peter Ehrlichman, who spent years shepherding the disciplinary task force's ideas into reality; Randy Beitel of the Office of Disciplinary Counsel, who was the primary draftsman and editor of all of the rules changes, and thus did all the hard work; Barrie Althoff, for his unwavering support and implementation of reform; and finally, the commitment of the membership of the funds and energy to accomplish this continued dedication to self-regulation for the benefit of the public. Well, we've just about done it. We've gone from being a disgrace to being a model for the rest of the country. It is an accomplishment and a system of which we can be justly proud. It's the best in the nation and it is finally a reality.

You've made me proud to be a lawyer again.

Editor:
I don't understand what logic supports the proposal to reserve seating on the Board of Governors for special groups. Is there some unbridgeable gap between young or minority lawyers and not-so-young or non-minority lawyers? If so, how does this difference manifest itself in practicing lawyers?

Does this mean my interest in long-arm jurisdiction should be different from that of a 27-year-old Asian female? Does this mean my view of the lawyer disciplinary process is a function of my race? Does it mean that if I'm not gay, I am unable to oppose discrimination or that I can't know what discrimination is? Is there a distinctive male view of indigent defense? For that matter, is there any piece of legislation listed on page 44 of the April Bar News in which one's views are solely a function of race, gender or age? Do the concepts of truth or due process or freedom of speech become different when you're older?

What is really amazing is the unspoken premise that professionals who daily transcend gender, age and racial differences when acting as advocates for clients are presumed to be incapable of transcending such differences when representing the interests of fellow lawyers on the Board of Governors. I believe this is an unwarranted slap in the face to all lawyers who have served on the Board. Is it any wonder the public holds lawyers in contempt in light of the Bar's own self-loathing?

Editor:
Having once been editor of The Advocate, the more or less official publication of the Bar of British Columbia, I still receive the Washington State Bar News and read it with interest. I noticed in the February 2000 issue, an article entitled, Civility in the Practice of Law: Must We Be Rambos to be Effective? by Robert W. Ritchie. It would appear that you run into the same problems we do in British Columbia with boors at the bar. I wrote an editorial on this very subject in 1993. My editorial had no discernible effect on the members of the British Columbia Bar.

Editor:
I read John Mills' article, Calculating Child Support Transfer Payments: A New Approach, in the March 2000 Bar News with great interest, as I too have the same observations. What he is suggesting, however, is far from new. The difficulty is in the accounting and the enforcement of child support orders taking into consideration these issues. Child support guidelines, as we currently know them, were forced upon all 50 states through the Federal Family Support Act of 1988, 42 U.S.C. 667. The federal government demanded "sum certain" uniform guidelines in each state so that collection of child support would be easier.

Besides providing for children through the Aid to Families with Dependent Children program, 40 percent of all child support cases become interstate cases during their term, thus involving the federal government. The federal government wanted simplicity and stability in the guidelines. The driving force behind the guidelines movement in each state was federal money available to the states for the easy enforcement of child support orders. States failing to adopt guidelines meeting federal standards stood to lose millions of dollars in federal aid.

Forcing deadbeats to pay for their families is the right thing to do. This reduces the amount of federal money needed to assist single parents who are not able to provide adequate resources for their children, or who have gone across state lines, thus making enforcement more difficult. But since guidelines were primarily developed to assist states and the federal government in the easy collection of child support, the fairness of the guidelines becomes only a secondary consideration. It is not surprising that inequities exist in the guideline calculations today.

Actually, I think there are two basic inequities to current child support schedules. The first, as Mr. Mills points out, is control over the pool of money representing the amount the guidelines determine is required to raise the children. Both parents are obligated to contribute to this pool. The Washington State Child Support Guidelines delineate the amount for both parents on line 15 of the guidelines. The children only benefit from the pool when the money is actually spent on them and their needs each month. The primary parent, or obligee, has a "duty to spend" the entire pool (including their contribution) on the children's support each month. (See my article, Split Custody and the Oakes Case, or the Mighty Oakes Must Fall, in the March 1994 issue of the Family Law Newsletter.)

The rub comes because the primary parent or obligee has complete control over the pool. If the primary parent decides to take the children on vacation, she/he has the ability to use the pool for this purpose. Not so for the "secondary parent." If the secondary parent decides to take the children on vacation, he/she must pay the obligated child support transfer payment, and then reach again into his/her pocket for the vacation expenses. There are no provisions for the secondary parent in Washington using any of the pool without a direct court order.

The second inequity concerns investment in real estate. No one will argue about the need of children to have a roof over their heads, and that children in a household increase the need for the size of the residence. Indeed, a large portion of the table amount is designated for this expense, which the primary parent must pay. No problem. And no problem if during the time the children lived in the home or apartment the primary parent spent the money on rent. But what if the primary parent or obligee buys a house? Is not the obligor's money helping the obligee invest in the larger real estate? Hasn't the obligee been unjustly enriched after years of co-investment by the obligor in a large house which the obligee now sells, pocketing the entire profit?

Just ask any obligor what gripes them most about paying child support, and these issues are immediately raised. There are no easy answers to these inequities in the Washington State Child Support Guidelines. It is a nightmare to establish and then enforce child support orders

accounting for the sharing of child support resources in relation to time spent with the children. Washington's original child support guidelines tried to address these issues, but abuses by secondary parents promising "overnights" that did not occur led to the removal of these provisions. I know of only a few states that still attempt to accommodate these issues. The resulting child support guidelines in these states have become very complicated and unwieldy.

Resource-sharing provisions in child support guidelines are complicated and easily abused, often leaving children with neither home being adequate. Let's face it — divorce is costly, and two homes cannot function as efficiently as one. Child support laws have opted for properly funding the primary parent's home, at the expense of the secondary parent's financial stability and comfort.

Child support provisions will always evoke strong emotions. The obligor will always complain that he/she is paying too much, and the obligee will always want more money. That is why I have always said that a fair child support settlement is one where both parties walk away from the experience of establishing a child support order equally unhappy.

Back to table of contents >>