September 2000

Letters

Editor:
As a member of the Washington Bar, and as an avid hockey fan, I cannot allow comments from WSBA President Richard C. Eymann [June, President's Corner, page 19] to go unchecked. It does the sport of hockey a great disservice to compare it to the legal profession generally, or to civil litigation specifically. I would submit that fouls on the ice are more appropriately dealt with than fouls off the ice. In fact, sometimes I would prefer the rough justice and the quiet dignity of the rink to the cutthroat and underhanded tactics often displayed by members of the profession. Hockey has a beauty and a symmetry that will never be found in litigation.

This is not to suggest that hockey cannot occasionally turn ugly, because clearly it can. Hockey players have, above all else, a love for the game, and seek not to bring the game into disrepute. Hockey players recognize their role within a system and work to achieve the goal of winning. Hockey is one of the few sports in North America where the combatants shake hands after a long and grueling series, often with blood on their faces or on their jerseys, and then congratulate each other on a game well-played. If I could be treated with the same respect off the ice as I am on the ice, I would be a happier litigator. Many litigators can learn a lot from a hockey game.

I urge the average fan and the average lawyer to look beyond the hype that is unfortunately too often used to either sell or condemn the game. Civility is there in both hockey and in the profession. We need to foster and encourage it. We can let the foul play blind us from what can be both a beautiful and majestic endeavor, but don't fall into that neutral zone trap.

Editor:
The Washington Digital Law Library's free CLE project began with two goals. The first goal was to provide Washington lawyers with sufficient free CLE programs to allow them to "max out" their 15-credit A/V allowance. The second goal was to demonstrate how huge amounts of CLE credit could be delivered at minimal cost.

The library's goals have been accomplished. In the past year we sent out approximately 2,000 free CLE CDs, each providing 16 hours of approved credit, including more than six ethics credits. Thus, the total CLE credit delivered was approximately 32,000 hours. Since the going rate for CLE credit is about $25 per hour, total potential savings to Washington lawyers may have been as much as $800,000. Since additional CLE got delivered via the http://www.freecle.com/ website and via cable TV, it may be that as much as $1 million worth of free CLE was delivered. As existing CDs continue to circulate for the next few years, this figure may go even higher.

So how much did it cost to produce this much free CLE credit? By using public library facilities to stage events, distributing written material on disks rather than paper, using cheap computers for recording and editing sound, and making do with "no frills" shipping packages, costs for the project total about $4,000. The biggest cost was getting CDs produced at 80 cents each, and next was the 55-cent stamp required for each mailing.

Given the foregoing figures, the cost-benefit ratio for free CLE is remarkable: each dollar expended results in savings in the range of $200-$250 to WSBA members.

The foregoing results were about what was expected. But the project yielded some surprises. We thought that the primary users of free CLE would be small firms and solo practitioners, especially in rural areas. Wrong! Downtown Seattle mega-firms requested CDs by the bushel. Perhaps the attraction was in the CD format or because the CD is a one-stop source for all six ethics credits. This is a mystery.

We also expected that, at some point, free CLE would run into resistance from WSBA management, since the WSBA is a very large provider of not-for-free CLE. In past years, free CLE activities were not encouraged. Surprise again! Under Executive Director Janice Michels, it appears that this attitude is completely gone. WSBA staff members on all levels have been extremely supportive. Of course, there is still some work to do at the Board of Governors level: 1) Get going with WSBA-produced free CLE, and 2) get rid of the accursed 15-hour limit on A/V credit!

And a third surprise — approximately 90 percent of requests for copies of the library's free CLE CD now arrive via e-mail, as opposed to snail mail. As Internet access approaches ubiquity, it would seem that the days of the CD are numbered. Why use the postal service when everyone can get instant delivery over the Net?

Here are two items from the Frequently Asked Questions page.

Q. May I pass along the CD to friends after I am done with it?

A. You may! Despite rumors to the contrary, there is no one-lawyer-one-CD rule. Some commercial vendors prohibit multiple use of their copyrighted materials. However, multiple use of the free CLE CD is highly encouraged.

Q. When I put the CD in my car CD player, all I get is popping and hissing noises. Did I get a bad CD?

A. Please read the label. The CD only works in a computer, and despite an angry letter from Palo Alto, only with Bill and Steve's favorite operating system.

Q. The CD is a year old. Can I still get credit for listening to it?

A. Yes! A/V CLE materials are good for five years from the date they are recorded, so most programs on the CD have several years to go. Skills training programs, such as the Tom Chambers Trial Practice CLE on the website, are good even longer.

Editor:
I'd like to make a suggestion regarding the proposal to add new positions for representatives from various groups to the WSBA Board of Governors.

Maybe the whole system of how we select representatives needs to be rethought. Rather than electing members by congressional district, or because they represent some organization, why don't we elect them all at large (i.e., if there are 10 seats on the board, I can vote for one candidate)? So rather than vote for someone from my congressional district, maybe I'd rather vote for a candidate who is also a solo practitioner, or someone who has some other affiliation I care about (minority, trial lawyer, etc.).

Not only would a system like this solve the problem currently facing the board, but we might all feel better about the person we elect really being representative.

Editor:
I believe at one time or another, most of us have been in a situation where we were the out-of-town attorney and the decision came down so strongly for the local attorney that we thought we'd been "home-towned."

I would like to bring to the attention of the Bar the fact that publication of Notice to Creditors in Skagit County probate just cost my client $267.38. My assistant called the Skagit Valley Herald about the exorbitant amount of the billing, and she was calmly told that Skagit County attorneys were only charged 50 percent of the usual amount, but as out-of-town attorneys we were required to pay the full amount. It would appear that we are being "home countied."

This seems to be rank discrimination to me, and I want everyone in the Bar to be prepared to let the Skagit Valley Herald know that if they do not change their policy, perhaps we had better start talking about how the organized Bar should treat Skagit County newspapers and/or Skagit County attorneys who are practicing in our territory.

Editor:
Is nothing sacred? The RPCs have just marched into our bedrooms. With its approval of the RPC amendment 1.8(k), the no-sex-with-your-client rule, the State Supreme Court has allowed unwarranted intrusion into the private relationships of Washington's lawyers.

Amendment 1.8(k) strips lawyers of basic First Amendment freedom of association protections. The First Amendment states: "Congress shall make no law… abridging the freedom of speech…," which includes the right to freedom of association. See Griswold v. Conn., 381 U.S. 479 (1965). What part of no law is not understood here?

Some may argue that RPC 1.8(k) is not a statute and should, therefore, be exempt from First Amendment scrutiny, but this is form over substance. Disciplinary sanctions under RPC — reprimand, censure, suspension, disbarment — carry the force and stigma of many statutory penalties, such as loss of income and damage to reputation.

Further, where is the problem? According to John Strait, the legal ethics professor at Seattle University (cited in the Wenatchee World 6/9/00), of the 2,000 to 3,000 complaints received by the Washington State Bar Association each year, only 20 involve clients who have had affairs with their lawyers. That is only one percent of the total complaints and involves only .09 percent of the 21,500 active WSBA members. And that is assuming that all 20 of these cases have sufficient merit to warrant disciplinary action.

The problem is not the lawyers. The problem is the bedroom police. As Justice Richard Sanders, the Court's lone dissenter, warned, "It's a massive intrusion of the state into the private lives of lawyers. It presents an opportunity for blackmail."

Although the vast majority of Washington lawyers engage in strictly business relationships with their clients, this unconstitutional rule applies to every lawyer. Under RPC 1.8(k), no lawyer may engage in sexual relations with a client, no matter how committed the relationship may be and no matter how harmless and consensual that conduct may be, unless the relationship existed prior to the representation. The rule sets up an irrebuttable presumption that a sexual relationship with a client is per se injurious to the client and cannot be proven otherwise. Irrebuttable presumptions are suspect and disfavored in the law, Jimenez v. Weinberger, 417 U.S. 628 (1974), and amendment 1.8(k) is no exception.

It is hypocritical to read the self-congratulatory praises of our profession in Bar News, and then observe the distrust and overreaching posited by this rule. With rules like amendment 1.8(k), the "scarlet letter" mentality is indeed alive and well.

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