May 2000

Letters

I write to express my strong opposition to the proposal put forward by WSBA President Richard Eymann in the February Bar News to include a "minority" and a "young lawyer" on the WSBA's Board of Governors. On the surface, each proposal sounds like a good idea. A few moments of reflection will reveal just how poorly thought through these ideas are, and what a profound change they would make in the governance of the state Bar. I will not address the constitutionality or legality of these proposals. I have no doubt that others are busy assessing this. Rather, I will address the policy aspects of this choice.

For better or worse, we have an elected Board of Governors. Each of the Governors represents, and is responsible to, his or her constituency. This is how democracies function. We do not select specific constituencies as requiring their own representative; all are free to run and the winner wins. I, and I suspect most others, know very little about the candidates for the office of Governor from our respective districts. I cast my vote based on what the candidates have to say and whatever other information I glean from the materials they send. People choose to be candidates for Governor for all sorts of reasons. However, they all have to submit themselves to the voters.

Mr. Eymann proposes to do away with this process for minorities and young lawyers. He provides no really strong reason for not trusting the democratic process. He talks of the fact that by 2050 over half of the U.S. population will be "minorities." However, he fails to state why that is a reason to change how we select our leadership now. If "minorities" are, in fact, over half the population, and if, in fact, they are also over half the lawyers, then my bet is that they will also be able to elect members of the Board of Governors. The supposed problem will solve itself.

And Mr. Eymann is not truly worried about all minorities, just "racial minorities." However, there are lots of minorities — some are racial, some are religious, some relate to sexual preference, some relate to physical or mental functioning, etc. Is each of these minorities entitled to a special seat on the Board of Governors? Nothing in Mr. Eymann's logic provides any reason why not. However, if we do go down that path then we have changed the Board of Governors from an elected body to a body composed solely of "special interests."

If the membership of the state Bar wishes to be governed in this fashion (which would be unique in the history of U.S. democracy) then I say we should be honest and actually vote on the proposition.

Sadly though, while Mr. Eymann is adept at threatening — he claims that he could have had the Board of Governors vote on the proposition without our input — he is poor at making his case. For example, how many minorities have run for the Board? Why haven't they run? When did they run? (If no minorities run now because they couldn't get elected 50 years ago, that's not a good reason to change how the Board is selected.)

Suppose this bad proposal were adopted. How would minority bar associations be selected as among the "chosen" entitled to select a person for a seat on the Board? As I described above, there are lots of minorities; what basis does Mr. Eymann propose for selecting?

I have one last comment with specific reference to Board membership from the Young Lawyers Division. In most organizations, the younger members enter, learn the ropes, and work their way up. Most "young lawyers" do the same in the sections and in other bar associations. Furthermore, the YLD sends its officials to observe the Board of Governors' meetings and present or comment on various proposals. If there are so many young lawyers and they feel Board of Governors membership is necessary, why not get together behind a candidate and get him or her elected?

I hope the membership of the state Bar treats this proposal properly and signals its rejection.

WSBA President Eymann has put forth a bold initiative to address the looming problem of minority exclusion in WSBA governance. His proposal took courage and generated significant and overdue discussion within the Bar, and exhibited extraordinary leadership.

The WSBA has been perceived, rightly or wrongly, as an old boy network which excludes those groups society has traditionally kept from the table. Nevertheless, any effort to bring banished voices into governance must be well-considered and must not be a token gesture to avoid addressing the inherently exclusionary system of the organization.

After much debate and reflection, the Asian Bar Association of Washington voted to support Mr. Eymann's proposal. We made this decision after several weeks of discourse within our organization. Our decision was not easy, nor was it unanimous.

We support the proposal for one simple yet compelling reason: We (minority attorneys) are not, nor have we been, at the table. Throughout its history, there has been only one minority board member, and never a president. Numerous institutional barriers have precluded minorities from participation in WSBA governance.

We have no voice in the leadership of the body which governs our profession. The Board of Governors has the power to set the agenda and take positions on key issues. The WSBA decides who is empowered to practice law, advocate, represent citizens, and fight for civil rights. A body with such power over not only lawyers, but in effect all citizens, must reflect the community.

Currently, the WSBA Governors are divided regionally by congressional district. The president must rotate between Eastern Washington, Seattle, and Western Washington outside of Seattle. Why do we have regional diversity? Because it has long been recognized that a truly democratic process, i.e., a statewide election for all positions, would potentially create a Seattle-dominated board and quell the voices of smaller communities. Hence, each geographic region selects its own governor to assert and protect its interests. Logically, the same holds true regarding the minority position.

We do have many concerns about the proposal. First, would the creation of a minority position result in the remaining governors avoiding their responsibilities to minority communities? Will those governors expect the minority governor to represent all minorities on all issues? Will the institution also expect minorities to run for the minority position only? Is the creation of this position a way to avoid addressing the institutional barriers obstructing minority participation in WSBA governance? After contemplating these issues, we are optimistic that vigilance and education will vitiate our concerns.

We hope that in the future, there will be no need for a designated minority position. Until that time, our voice must be heard, we must be at the table, and we must be our own messengers.

It has come to my attention that the Washington State Bar Association is considering a proposal to add a minority position to its Board of Governors. As many of you may know, increasing racial and ethnic diversity at all levels of the legal profession is the subject of an American Bar Association initiative during my term as President. It is vital that the legal profession reflect our society. We must remain mindful that our general population is about 30 percent of color and in the foreseeable future will be 50 percent, while our profession is more than 90 percent white.

We are pleased at the positive response to the ABA initiative, and continue to encourage programs and projects to accomplish this important objective. Several years ago, positions for minority lawyers were established on the ABA Board of Governors. This development generally is viewed as a resounding success. As bar associations around the country consider how to enhance diversity in the profession, we commend the ABA experience for study and consideration.

There is a situation that concerns me and I believe should concern all members of the WSBA. That is the fact that the members of the Washington State Trial Lawyers Association (WSTLA) have effective control over the governance of the WSBA. President Eymann, President-elect Peterson, and eight of the incumbent 11 governors are members of WSTLA, or American Trial Lawyers Association (ATLA), or both.

I have no quarrel with trial lawyers. My deceased partner, Grant Armstrong (who died in 1991), and I have been members of the American College of Trial Lawyers (ACTL) for a total of over 40 years. I was Washington State Chairman in 1992-93.

As to the WSBA, my deceased partners, A.A. Hull (who died in 1961), Grant Armstrong, and I have been long-time members — they, since it was organized in 1933, and I, since 1950. All three of us were elected to the Board of Governors. (Mr. Hull was elected to the first Board in 1933 and served two terms.) All three of us served as President of the WSBA. (Mr. Hull completed the term of the elected President in 1939, his sixth year on the Board of Governors.)

The point of the foregoing is that trial lawyers and the WSBA are near and dear to my heart.

WSTLA is not just an association of trial lawyers, but one primarily dedicated to assisting plaintiffs in personal injury cases. It is billing a seminar — for members only — entitled "How to Hammer Allstate." In WSTLA's February 2000 issue of Trial News are the headlining articles "WSTLA Lobby Days Successful" and "How to Win Against Wal-Mart." In the same issue, it lists the monies contributed to the association in 1999 by members. WSBA President Eymann, President-elect Peterson, and four incumbent Governors and/or their firms contributed a total of not less than $37,200 nor more than $72,794, according to the article.

The March 2000 issue of Bar News (p. 53) names the three Governors appointed to the Presidential Search Committee for year 2001-2002. Guess what? All are WSTLA or ATLA members.

In the February 2000 issue of Bar News (p. 19), President Eymann put out a plaintive cry for diversity on the Board of Governors. He advocates addition to the Board of lawyers who are not elected by members at large. I can hear him saying that plaintiffs' lawyers represent people from all walks of life. Therefore a Board of Governors consisting only of WSTLA members would be truly diverse.

A reason for concern about centralizing membership of the Board of Governors is that, under Article XV of the WSBA Bylaws, the Bylaws may be amended by a majority vote of the Board of Governors at any regular meeting or at any special meeting called for that purpose.

To reverse or modify any amendment takes a petition for referendum signed by five percent (about 1,250) of the active members of the WSBA. The petition must be filed within 90 days of the action that is the subject of the referendum. The complex procedure for referendums is in Sec. VII (I&J) of the Bylaws.

Recently I defended another attorney who filed a lawsuit against a county, in an adjacent county. Unfortunately, he and many other attorneys are unaware of the fact that the legislature amended RCW 36.01.050 in 1997.

The statute now requires that an action against or by any county be commenced in the superior court of such county, or in the superior court of either of the two nearest counties. The statute futher provides that the determination of the two nearest counties shall be made by the State Office of the Administrator for the Courts. The current listing for each county is included.

Editor's Note: The chart Mr. Thorner refers to can be found on page 55 of this issue.

I read with some bemusement John Mills' article, "Calculating Child Support Transfer Payments: A New Approach," in the March issue (p. 37). Obviously Mr. Mills is and/or represents "nonprimary" parents. He does not seem to understand that the transfer payments are to provide the basic minimum that a child needs. If they can afford it, both parents will probably have to spend more than the amounts mandated by law. He also does not seem to understand that two parents who could not stay married to each other and live together successfully will never be able to agree on which one should buy the child's winter coat, who should pay for the school photographs, etc. Clearly, one parent has to receive the transfer payment and then use it to pay for all of the child's basic needs. It is hoped that both parents will then contribute additionally from their separate funds to enrich the child's life with other than basic needs. I have not yet seen a "primary residential parent" go to Aruba on the "excess" child support he or she receives.

I received the December issue of Bar News by mail several months ago. I am responding to the editor's page of that issue. I didn't begin reading that issue until February. It had been sitting on my desk waiting to be read. I was going to a health club in downtown Vancouver, and I thought I would read it there. I started to read it in the sauna, but it didn't work. I was sweating too much and the paper got wet. Could you publish a plastic version?

I thought I accidentally left that issue at the club, but I found it a couple of days ago at home and brought it to my office. I'm reading it today, thus the responsive e-mail. For now, if Bar News was only online, I probably would not have saved that issue. I don't like reading at the computer too long. But in paper form, I saved it. Someday I will have the electronic version that can go anywhere, even the sauna.

I can only speak for myself, but as a deputy prosecutor, I am appalled that a lawyer can be convicted of two felony charges involving a handgun and only suffer a suspension from practice (suspension, p. 52, Bar News, March 2000). No wonder the public thinks the system is rigged in our favor.

Francis Fukuyama wrote a book a few years back entitled "The End of History." The thesis (vastly simplified) was that if history is defined as the battle between competing ideologies, then we are nearing the "end of history" as liberal democratic political systems gradually become accepted as the worldwide social norm. I have written elsewhere about the "End of First Amendment History," which I have defined as the fact that the big battles against censorship have been won, leaving current cases to bicker about the outer edges of First Amendment protection.1 

The biggest battles against censorship today are not battles against an authoritarian state, but battles for "hearts and minds."2 These are battles for openness to and acceptance of the existence of ideas one may despise: in a word, tolerance. These battles are not fought just in the public arena, but in numerous private conversations that take place every day.

I'm sure many members of the Washington State Bar Association's Young Lawyers' Division welcomed the return in the March issue of De Novo of former De Novo editor Evan Loeffler's first humor column since his retirement last summer. Upon Evan's retirement, De Novo received more letters lamenting the loss of his regular feature than we received on any other issue over the past several years. Yet the column printed in the March issue was not the first Evan Loeffler column submitted for publication in De Novo since his assumption of emeritus status.

Evan originally submitted the column entitled "A Field Guide to Clients." I believe the article is a funny, satirical look utilizing stereotypical labels including "the smart ass, the nervous nellie, the dumb ass, the best friend, the tightwad, the outrageous bastard, and the dead stiff," and giving "advice" on how to handle such clients. When I originally received the article, I decided to print it, and was actually elated that I had finally been able to get Evan to submit another piece.

The ruckus over this piece began with the WSBA staff's review of the galleys. The WSBA staff reviews all issues of De Novo, primarily to make sure De Novo doesn't libel anyone or otherwise create legal liability for the Bar. This humor column disturbed the WSBA staff to the point they felt the need to "bring it to the attention" of the WYLD Board of Trustees (BOT), even though explicitly disclaiming any "suggestion" not to print the article.

The article was discussed by the BOT at its February meeting, and following this meeting the Board instructed the production coordinator to inform the editor that the article was being pulled. Almost two weeks later, a conference call was held at which the major topics were the limits of the editorial discretion accorded to De Novo's editor and the "appropriateness" of printing the article in De Novo. There were also contentions that De Novo was not really a newspaper at all, but merely the public relations arm of the WYLD, and therefore openness to diverse and controversial content was not a desirable attribute of De Novo's publication policy.

At the conclusion of the conference call, it was established (at least to the satisfaction of some that participated) that the editor had discretion to print the article.3 As editor, I agreed to add two explicit disclaimers: a large warning that the article was satire, and an explicit statement in Evan's byline that "the views expressed in the articles are solely those of Evan Loeffler and are in no way, shape, or form those of the WYLD." (See draft version of the galleys, on file with the De Novo production coordinator.) These disclaimers were in addition to the general disclaimer that runs in every issue of De Novo stating that the views expressed in the articles published are those of the authors, and not those of the WYLD, the WSBA or their governing bodies.

In the week following the conference call, the tactics changed. I received four separate e-mails from BOT members "requesting" that I not print the article. The themes of these letters hadn't changed from the more forceful arguments made the week before. All of the letters felt that an article criticizing clients, even in a satirical and humorous fashion, was inappropriate for the WYLD newspaper. The letters also expressed concerns that the views contained in the article would be attributed to the WYLD.

Needless to say, I wholeheartedly disagree with these views. I believe that De Novo is a newspaper, not merely a public relations device, and should not shy away from controversial articles, so long as those articles concern the law or areas of interest to young lawyers. I do not believe that the BOT's fears regarding the "attribution" of the article to the WYLD are reasonable. In "legal" terms, I doubt that — particularly after the addition of two extra disclaimers — these fears have even a "rational basis." Any client or potential client who attributed these views to the WYLD when specific disclaimers stated that these views are not those of the WYLD would simply be wrong. The Bar cannot and should not base a publication policy on the possible mistakes of anyone who happens to run across the newspaper. I note, for example, that the Tacoma-Pierce County Bar Association's Bar News has run several cartoons on its back page over the past year that could be interpreted as unflattering to clients, apparently without protest.

Suppose the editor had received a letter to the editor from a young lawyer strongly criticizing certain groups of clients, for example a disgruntled legal services lawyer who criticized his/her clients (as a class) for a lack of education or a lack of initiative. Another not-too-farfetched hypothetical would be a disgruntled plaintiff's personal injury lawyer who wrote an article strongly criticizing his/her former clients (as a class) as con artists and malingerers. Would the BOT seriously suggest that these articles should not be printed? That they were not important contributions on issues that affect WYLD members?

I believe the far better result is to publish these articles, and then publish every letter disputing them and every counter-article submitted. And if counter-speech is the better solution for a "serious" article, why is it not the better solution for humor and/or satire?4 

Humor and satire, even satire whose subject matter may be "objectionable," has repeatedly proved to be a valuable vehicle for social criticism. This form of expression has also been stubbornly subjected to attack, from Lenny Bruce in the 1960s to 2 Live Crew in the 1990s.

I believe there is room for the public relations aspect of De Novo's mission, as demonstrated by the president's column and the events listings, but that this aspect of De Novo is but a portion of De Novo's larger role as the WYLD's sounding board. De Novo is a place for all WYLD members to put their views forward on matters they view as significant to the profession, whether it be a serious criticism of a Supreme Court doctrine (see Ladson article, October 1999), or injecting a note of levity laced with criticism into a serious business. WYLD members should know that their views — if not libelous and if remotely connected to the practice of law — will be aired.

I have decided to resign my post as editor of De Novo, effective upon publication of the April issue. Prior to resigning, I had decided to run Evan's article in the June issue of De Novo, along with a version of this letter as an editor's column. I would urge the next editor to print Evan's article in an upcoming issue of De Novo. I sincerely hope that the WYLD membership will find the article funny, perhaps more than a little telling, and that WYLD members will exercise your own rights to let their fellow WYLD members know what they think.

Geoffrey William Hymans, the former Editor of De Novo, is an attorney working in Olympia. He can be reached at lshgwh@cs.com.

NOTES

1 See, e.g., Free Speech Coalition v. Reno, ___ F.3d ___ (9th Cir. 2000)(Virtual Child Pornography); DCR, Inc. v. Pierce County, 92 Wn.App. 660 (1998) (Proximity of exotic dancer as expressive element of "speech").

2 The best work documenting such battles is Free Speech for Me But Not for Thee, Nat Hentoff, HarperCollins, 1992.

3 This, I suspect, is likely to change with the scheduled revision of the WYLD Editor's Handbook, currently slated for this summer.

4 For those interested in the subject, possibly the best book on the importance of "objectionable" satire and parody as protected expression is Jerry Falwell v. Larry Flynt, Prof. Rodney A. Smolla, St. Martin's Press, 1988. I note that it may be hard to discern the intent of a humorist in writing his pieces, absent an editor's grilling of the author. I believe, however, that the task of discerning a humorist's intent, particularly where that intent may be a melding of both subtle criticism and the provoking laughter, is better performed by the reader.

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