August 2001

Letters

I was disappointed to see the letters attacking the editor of the Bar News for his piece critical of George Bush's new policy regarding judicial appointments, and the American Bar Association's (ABA) involvement (May Bar News, p. 15). I have never thought of the ABA as a radical organization. I would expect the ABA would have more of a basis to evaluate candidates for positions on our Supreme Court and other federal courts than the average politician. Partisan voters with biased views of the ABA may not be interested in the ABA's opinion on a prospective judge's "integrity, judicial temperament and professional competence."

However, my experience with the average citizen is that they are very interested in knowing whether the ABA thinks a judicial candidate is competent or not. If a candidate is not competent and that becomes known before a confirmation vote, voters have an opportunity to express an opinion on the merits of confirming the appointment. There are also those in Congress who have an interest in the ABA's evaluation.

 Finally, I take issue with Roger Ley's  implication that the Wall Street Journal's editors are objective or unbiased. They are to the right of Pat Robertson. Their editorial policy seems to be guided by Strom Thurmond and Jesse Helms. I, for one, appreciated your column on judicial appointments. I suppose you don't know whether you have taken a position unless it draws fire. Thanks for being willing to bear the criticism.

I read with interest Barrie Althoff's article "Communicating with a Represented Governmental Client" (June Bar News, p. 42). Barrie's work is always scholarly, thoroughly researched, and a pleasure to read. I disagree with much of what he said here, however.

The application of RPC 4.2, prohibiting communication by a lawyer about the subject of the representation with a person whom the lawyer knows to be represented, should be the same when the government is a defendant in a lawsuit as when a private party is the defendant. The reason Barrie offers for allowing such communications in the context of a suit against government is the right of petition under the First Amendment and under Wash. Const. Art. I, ß 4 ("The right of petition … shall never be abridged."). Barrie says: "To the author, elevation of an ethical rule over a constitutional right seems questionable."

But the Rules of Professional Conduct are promulgated by the Washington Supreme Court and they are not trifles: they are aspects of the Court's inherent power to supervise the Bar in furtherance of the administration of justice. The Court's inherent powers derive from common law, and therefore predate and trump any constitution, unless the constitution specifically abrogates a specific inherent power. For instance, the Washington Constitution might say "the Legislature shall supervise the practice of law in the state of Washington," but it does not. Implicitly, therefore, the people have left the supervision of the practice of law with the Supreme Court because that was the common law understanding in 1889, when our constitution was adopted.

Some Rules of Professional Conduct other than RPC 4.2 restrict free speech, some may argue in derogation of the First Amendment. For example, RPC 3.6 states: "A lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding." This rule obviously limits speech, but does so pursuant to the Court's authority to manage the orderly administration of justice by supervising the activities of the practicing Bar. RPC 8.4(e) says it is professional misconduct for a lawyer to "[s]tate or imply an ability to influence improperly a government agency or official." Shouldn't this otherwise not illegal and not actionable expression of speech be protected by the First Amendment? Such an expression may in fact be true in some circumstances, but is still forbidden.

In summary, the Rules of Professional Conduct can and do trump the First Amendment when the Court considers the orderly administration of justice to be at stake. I doubt there is much disagreement on this point, or on the Court's authority to promulgate and enforce such rules.

But let's get back to the purported right of the attorney to petition the government for redress of grievances. The attorney RPC 4.2 addresses is not petitioning the government; he or she is merely representing a party who is petitioning the government by means of a lawsuit. That attorney may certainly contact any government official in his or her own right as a citizen. But when that attorney is in a representative capacity, the Rules of Professional Conduct ought to apply, just as if the lawsuit were against a private party. Representing a petitioning party is not the same as petitioning yourself.

I would argue that because the people of Washington have waived sovereign immunity, and that the state "shall be liable for damages arising out of its tortious conduct to the same extent as if it were a private person or corporation"(see RCW 4.92.090), the state ought to be treated like a "private person" with respect to the Rules of Professional Conduct when it is involved in a lawsuit. There is no reason lawyers suing government should be excused from the RPCs.

What is absent from Barrie's article is any public policy reason justifying an exception to RPC 4.2. What public policy purpose supports a direct communication from a suing party's lawyer to the head of an agency, for instance? When is it ever necessary or desirable to make such a communication? Obviously, the suing party can accomplish whatever is sought by communicating directly with the agency head; the RPCs don't apply to nonlawyers. The only thing that can happen by allowing communications in violation of RPC 4.2 is a bad thing: confusion, or the driving of a wedge between government lawyer and government client. Such attempts are forbidden in private lawsuits; they should be equally forbidden in suits against government.

I always appreciate Barrie Althoff's articles on Ethics and the Law, and more often than not agree with his commentary. However, I strongly disagree with his suggestion in the June 2001 article "Communicating with a Represented Governmental Client" that a constitutional right to petition the government should allow the lawyer for a party to contact a represented government client in a matter. As Mr. Althoff notes, this is a "minority" view of the anti-contact rule of RPC 4.2, and rightly so. A citizen who is a party may contact a government official directly, but to allow the citizen's lawyer to do so is not required by the constitution and undercuts many of the purposes of the rule. As noted in Alaska Bar Association Ethics Opinion 94-1 (1994):

Direct communications by opposing counsel with a represented adverse party usually would be made only for the purpose of by-passing the party's counsel in hope of obtaining an advantage or opportunity that would not otherwise be available or to advocate a position that was not persuasive when presented through the party's counsel. The direct communication may distort the strengths or fairness of the communicating party's position and overstate the risks to the other party, thereby serving to undermine the adverse party's confidence in his or her attorney and perhaps create beliefs, fears or impressions that cannot later be corrected by that party's counsel. Those concerns clearly apply in the context of a presentation to a government agency.

As the article notes, it is sometimes difficult to draw precise parameters around the "subject of the representation" as that phrase is used in RPC 4.2. Government lawyers should interpret the rule in a way that serves the purposes of the anti-contact rule, but doesn't sweep so broadly that it inhibits other legitimate contact with government officials. Citizens' contacts with the government can be ongoing and broader than the matter at issue, and we need to recognize that fact in a reasonable application of the rule.

To conclude on a note of agreement with Mr. Althoff, the better course is for the lawyers for the various parties to discuss the matter and reach an understanding. This will advance the working relationships of both the counsel and their clients, and will avoid claims of ethical violation.

The admonishment against Daniel P. Kinnicutt is reported on page 53 of the April issue. I am not sure I understand why he was sanctioned; perhaps others do. The Bar News article says, in part, "The disciplinary action is based upon his making a discriminatory argument in court." Fine. If he made a discriminatory argument in court, discipline should follow. My problem is I do not think he did that. As reported, Kinnicutt said: "You know, in the world's eye she is not the most attractive lady. She is heavyset. In terms of the way she styles herself, you would probably walk by her in public and look, and probably not turn around, and maybe make a snide remark simply because of her status in society. And maybe even because she is dating an individual of the opposite color." This column does not tell us what the criminal charge was, but whatever its nature, it was an alleged crime against this lady. One assumes that in final argument Mr. Kinnicutt is trying to persuade a jury that the evidence proves the defendant's crime beyond a reasonable doubt.

Why, one would ask, is he telling the jury that the victim is a homely fat lady who dates outside her race? Understandably, this short article does not tell us what the evidence was, and apparently it was not enough. The article says the defendant's crime was beyond a reasonable doubt.

I am left with the feeling that Mr. Kinnicutt was grossly misunderstood. He does not offer a disparaging personal opinion as to her looks or conduct, rather, in the introductory clause that prefaces his whole remark, he says: "You know, in the world's eye she is not the most attractive…"

Is he right? Would the world think less of her because she is obese and perhaps less yet if she keeps company outside her race? And when the "world thinks less" of an individual over a long period of time, does that person suffer a loss of self-worth and become more vulnerable to one who would take advantage of her?

People who have had the experience will tell you that obesity is subject to some of the subtle and sometimes not-so-subtle prejudices that confront others who are "minority" for one reason or another. People laugh, they stare, they make cutting remarks. Television sitcoms are not above it. Clerks are slow to wait on such people in stores, especially in the more upscale establishments. After years of this treatment, obese people, especially women, begin to think that indeed they are less worthy, less valuable. I have seen it happen.

American culture celebrates, extols, and practically worships youth and svelte good looks. In my view, the prosecutor is rightly reminding the jury that in court, all persons, tall and short, skinny and fat, handsome and ugly are entitled to equal treatment and consideration. In other words, in evaluating the victim's testimony and credibility, they were to ignore such differences. Maybe I have missed something, but if that was his argument, he was right.

Perhaps this prosecutor could have verbalized his theory of victim vulnerability with more finesse, but final arguments are extemporaneous presentations that are usually given final preparation about the time the instructions are being read to the jury. How many of us who have read transcripts of our own oral verbiage find ourselves musing with embarrassment, "My God, did I say that?"

I think Mr. Kinnicutt could have been cut some slack. Restricting latitude of final argument casts an ominous chill on advocacy.

I applaud President Peterson for his article (June Bar News, p. 13). He gives credit to Jaclyn Sinclair for her article in the King County Bar Bulletin, which is most deserved.

I wrote to Ms. Sinclair in Arizona, where she now lives, commenting on her article. In her response she inquired if there had been any comment or feedback noted in the Bulletin. On May 29, I wrote to regretfully advise her that I had seen none. I received my June Bar News yesterday containing the subject article. I am sure Ms. Sinclair is very pleased with Mr. Peterson's comments. I am sure she knows of same but I sent her a copy this morning, just in case.

Everything I mentioned to Ms. Sinclair in my letter applies equally to Mr. Peterson's article. In addition to all the other adverse effects, the loss of candor in the lawyer ranks is causing a huge increase in the complexity, length, and above all, cost of litigation. This is rendering the system incapable, economically, of handling an increasingly large percentage (now a majority, I'm afraid) of civil disputes.

We have digressed rapidly since the old Canons of Legal Ethics, circa 1908, which charged: "The conduct of the lawyer before the court and with other lawyers should be characterized by candor and fairness." (See first sentence of Canon 22.) These wise and time-honored canons were abandoned in 1966 with a new code, later to be replaced by the watered-down version we have today. The present code sure needs revision.

President Peterson tacitly suggests that reversing the trend will be difficult. Reversing such a trend in any group or class must start with the basics — the (law) schools, the authorities having some jurisdiction over group discipline (bar associations and courts, especially trial courts), and the members' motivation among themselves. It will certainly be difficult.

I was struck by the wisdom contained in President Peterson's article "The Truth, the Whole Truth, and Nothing but the Truth." One piece of evidence in support of the argument that part of the Bar no longer values or honors truth telling that was missing in this otherwise excellent article, though the perpetrator was mentioned, is the saga of former President William Clinton and his inability to tell the truth. His reliance upon his now well-known parsing of the English language to obfuscate the truth, e.g., "It depends on what the definition of 'is' is," is part and parcel of this trend. Thanks are in order to the Arkansas Supreme Court in disbarring lawyer William Jefferson Clinton.

I just read your "Two Cents' Worth" May opinion column. Consider what you showed us about yourself.

 You referred to the president of the United States, George W. Bush, and his administration many times in your article. What term of respect did you use? George Bush? George W. Bush? President Bush? Mr. Bush? Never.

No, you just called him "Bush." Seven times that last name appears. Repeatedly calling an ordinary person by only their last name is contempt. Repeatedly calling the president of the United States by only his last name is arrogant contempt.

You referred to "Martha W. Barnett" and "Martha Barnett" and "Ms. Barnett" so you obviously know how to use proper terms of respect. No term of respect for the president of the United States was able to escape from your clenched fist.

You condemned the president as "making new enemies at every turn, and even offending people who want to be friends." There were no facts to back up this inflammatory language. Then you referred to "the president and his minions.…" Webster's cites that as a term of contempt.

We are forced to pay your salary and forced to pay for your office and forced to pay for the Bar News pages you can fill with your opinions. You can lead us by good example or you can draw us further into the pit of contempt for others.

By having bar examinees wait for three months or more from the time of the exam to the time they can begin earning a living, WSBA shows a callous indifference to its prospective members who, by the way, have no one to represent their interests. The delay causes loss of revenue, anxiety, and puts people's very lives on hold for an unwarranted amount of time. Assuming these future competitors deserve our consideration, herewith a proposal.

One could grade five of the 18 substantive questions; if an examinee is averaging at least 7.5, then it should be statistically safe to assume his or her cumulative average will not fall under a passing grade of 7.0. Then grade five more questions for those remaining; if the average is 7.3 or more, assume a passing grade will result. For the rest, grade every question, so that anyone who fails will be unaffected by the above approach. I believe the above numbers could be juggled so that less than half of the exam answers will need to be graded.

This idea strikes me as eminently fair, it should save the Bar much grading time and therefore tens of thousands of dollars of expense, and it would allow each group of incoming attorneys to realize extra cumulative revenues of at least two million dollars by my reckoning, and this at a time when revenues are sorely needed. The present waiting time between the exam and the results is two-and-a-half months. Whether this idea flies in some form, or some other method is employed, in no event should examinees have to wait more than 30 days for their test results.

I object to the proposal of the Bar Association and the Board of Governors to create two new seats on the board designated for nonwhite lawyers, presumably one black and one of another race.

This is unconstitutional. The federal Constitution prohibits discrimination by government based on race in the equal protection clause of the 14th Amendment. The Bar Association, a regulatory agency created by the Legislature to oversee the practice of law, is part of government. Setting aside a position for one race or another in a legislative body discriminates on the basis of race.

The board tries to get around this problem by pretending that the two positions are not racial. But it is obvious from the history in the pages of Bar News and from the language now used that the purpose is racial. Proposed Bylaw M says that the board is supposed to be "more diverse and representative than the results of the election," and directs that the board is to designate two members by considering "age, race, sex, geography, areas and types of practice, and years of membership."

Well, the government cannot enact a law valid on its face and enforce it in a systematically racially discriminatory way: Yick Wo v. Hopkins, 118 US 356, 1886. That old case says, "The rights of the petitioners … are not less because they are aliens and subjects of the emperor of China.… The 14th Amendment to the Constitution is not confined to the protection of citizens. [Its] provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws … the facts shown establish an administration directed so exclusively against a particular class of persons as to warrant and require the conclusion that whatever may have been the intent of the ordinances as adopted, they are applied … with a mind so unequal and oppressive as to amount to a practical denial by a state of that equal protection of the laws.…" The law had said it was illegal to operate a laundry in San Francisco without a permit unless the building was stone or brick.

Section M of the Bylaws is discriminatory not only in intent but also on its face.

It is interesting to note that the Bar Association does not believe in the limited form of democracy represented by the elected board. They say, apparently without shame, that democratic government is not good enough, that elected representation is not an adequate form of government, and that the government, in the form of the board, should choose for the people some of their Legislature. This is very wrong.

If the Supreme Court endorses this proposal, it amounts to an endorsement of racial discrimination in government. That disqualifies the Supreme Court from hearing other cases alleging racial or other discrimination, because the Supreme Court has already taken an official position approving this discrimination. Having taken an official position, the Supreme Court is no longer neutral and detached, and cannot hear cases raising these issues.

This creates further problems because state government must have courts that are open to all. But the courts are not open to those who present issues of racial discrimination in government. The answer of course is that the board cannot adopt these "bylaws." The board should abandon this unconstitutional proposal.

Editor:

I have carefully read the Board of Governors' guidelines on protecting the rights of minorities, as well as the letters to the editor from Mr. Pacher and Mr. Ley (May Bar News, p. 7). Following is my application for one of the "at-large governor positions": Article M in part provides that the underrepresented member shall "not be limited to age, race, sex, geography, areas and types of practice, and years of membership."

1. Age: On April 20 I will be 74 years old. This is an underrepresented group by any standard. Only a few of us were represented at the last Bar meeting, or even alive.

2. Race: I am an Irish-Norwegian-American. The Irish have been systematically discriminated against since we were driven from our homeland by the white Anglo-Anglican and forced into police work and low-level politics. Of course, the Norwegians have even been shunned in ghettos like Ballard, and forced to sea as lowly fishermen to capture for the elite the elusive halibut and salmon.

3. Sex: I have come out of the closet. I admit to being a lesbian trapped in a man's body. This sex preference is grossly underrepresented and discriminated against in the Bar.

4. Geography: My primary business interest is in Home, Washington. My other office is in the desert in Arizona. Nobody in the Bar knows where Home is. Both locations are geographically underrepresented areas in the Washington Bar.

5. Areas and types of practice: Real-estate sales, foreclosures, estate planning. Representing the most shunned, reviled and misunderstood clients such as mortgage companies, real estate salespersons, life insurance salespersons, judges.

6. Years of membership: UW class of 1953; admitted on first go-round as No. 3086, and never successfully discriminated against until now.

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