February 2001

Letters

Editor:
On November 15, in his hometown of Pasco, WSBA President Jan Eric Peterson presented the keynote address to the annual legislative conference of the Washington State Association of Counties (WSAC). The WSAC is a nonprofit association for the elected county commissioners, executives and council members of Washington's 39 counties.

WSAC members want to publicly thank Mr. Peterson for his remarks and his reminders that public servants — whether lawyers, bureaucrats or elected officials — do valuable work of which they (we) should be proud. We congratulate the WSBA on its choice of leadership for the new millennium.

We also thank Mr. Peterson and the WSBA for their support of access to justice programs and civil legal services. Counties, as providers of indigent defense in criminal cases and child dependency cases, recognize the importance of quality legal services for all citizens. While county budgeting constraints can involve some difficult decisions on this matter, we fully support the principles of access and look forward to working with the Bar Association to ensure "equal justice for all."

Editor:
You used a prominent, highlighted, column-long box to take a backhanded slap at the decision of the appellate court in Dwyer v. Kislak, ___ Wn. App.___, 13 P.3d 240 (2000), last month (January Bar News, p. 7). You implied that the court imposed sanctions for citation of unpublished authority despite the lawyer's principled discussion of the constitutional grounds permitting such citation.

I am the appellate lawyer representing the class of homeowners who prevailed in that Consumer Protection Act (CPA) case. Let me suggest a bit more investigation be done before making such accusations. I'd like to outline what really happened here.

It is inaccurate to say that the court sanctioned opposing counsel "after first calling the Court's attention to the 8th Circuit decision holding them [no-citation rules] unconstitutional." In fact, after I filed the opening brief — which was based solely on published authority — the mortgage lender filed a response relying almost exclusively on unpublished, out-of-jurisdiction, trial court decisions for its CPA argument. Those trial courts typically have rules barring citation of such unpublished authority.

That response brief then cited an unpublished decision from the Washington Court of Appeals, and criticized me for failing to call it to the panel's attention. The brief's exact words were, "The Dwyers do not cite this Court's recent decision in Cain v. Source One Mortgage Servs. Corp ... which affirmed summary judgment in favor of the mortgage servicer on identical claims ...." Response, pp. 21-22.

That response made no argument about the unconstitutionality of RAP 10.4(h), which bars citation of such unpublished decisions. That response did not cite the Anastasoff 1 case, though you imply they did. In fact, that response is dated Dec. 20, 1999, and the Anastasoff case was decided in 2000. (Further, Anastasoff has now been vacated.)

The first mention of the propriety or impropriety of citing those unpublished cases was in my reply. I'm sure that if you had had the opportunity to see that reply, you would know that the respondent was made aware of the court rules of various jurisdictions (including our own) barring citation of unpublished decisions.

Anastasoff was cited for the first time by respondent's attorney at argument. It was in response to Judge Baker's statement to him, at the beginning of argument, that he had made the error of citing unpublished authority in violation of Washington's court rule in his brief and should not repeat that error in argument. Despite this direct warning, no further briefing on publication or citation occurred.

In fact, the sanction that ensued was not for relying almost exclusively on unpublished out-of-jurisdiction trial court decisions. Instead, the appellate court took the more restrained course of imposing a minimal sanction for citing the unpublished Washington decision — something clearly barred by our longstanding rule.

Your highlighted alert concluded with a call for Washington Supreme Court review "to gain a definitive ruling on this issue." Certainly, RAP 10.4(h), a Supreme Court rule, and Division I's decision are "definitive" now.

I don't mean to diminish the importance of the debate about publication, and how it impacts both judicial accountability and the development of the law. But your decision to call for Supreme Court review in this pending case, at the expense of my clients, is inappropriate. This case does not satisfy the prerequisites to review because it presents no real constitutional issue: in Washington, the Legislature has specifically enacted a statute (RCW 2.06.040) barring courts from publishing decisions lacking precedential value. Thus, any purported constitutional conflict with the legislative branch is absent here, and there is certainly no conflict with any judicial decision that counts.

The policy debate can continue elsewhere. I am glad that it continues in this magazine. I just want this part of the debate to be based on an accurate understanding of the facts.

Thank you.

1 Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000), vacated, ___ F.3d ___, 2000 WL 1863092 (8th Cir. 2000).

Bar News appreciates Ms. McCloud's insight into this issue. The information we receive is limited to the Court's published opinion, which was quoted at some length. We believe that the Bar is served by a lively public debate over the availability and use of "unpublished" opinions. (See, Bar News, 54:12, Dec. 2000, p. 28). We also believe that this is an issue that deserves review by our highest courts. We take no position on the merits of any particular case. — Ed.

Editor:
I was thrilled to read that the Board of Governors has decided to add a "diversity" position to the board for minority attorneys. Finally, a position just for us minority members of the WSBA. I'm applying for the female, Norwegian-American, small-town Eastern Washington native, arthritic, conservative Republican, gun owning, low-rise suburban office, sole practitioner, gender-bias family law reform anti-elitist activist/rabble-rouser seat on the board. Where do I send my application?

Civility in Bar News, Please

Editor:
Unless required by zealous advocacy and well supported by facts, for a lawyer to call a woman a prostitute is generally considered ungentlemanly — or uncivil, if you prefer. The same goes for claiming that a man has committed the crime of hiring a prostitute. And to call a fellow attorney either a perjurer or a coward for not suing her employer for sexual harassment is likewise ungentle, to say the least. Yet Bar News printed just such accusations in its December 2000 Letters section (p. 7).

It is ironic that these cheap shots appeared in a letter ostensibly discussing the reputation of the legal profession. For Bar News to print near-libel does nothing to solve the problem, nor to improve understanding of the problem.

Bar News is not a public forum required to print everything it gets. Like commercial periodicals, it may require that even its most contentious content be phrased with decorum. Now that Bar News letters go to the Internet, it is doubly important that the WSBA not spend member dues providing a vanity press for hate mail.

I urge the editors to require civility in all they print. Most contributors make strong points without calumny; those who lack the skill should seek a more suitable venue, and perhaps a more suitable profession.

Editor:
I don't know Mr. Ley. (Letters, December 2000 Bar News, p. 9.) I don't know what he has been doing in life for the past 30 years. I don't dispute his absolute right to have an opinion and an equally precious right to voice it. However, I do know what I have been doing for 30 years, and I do know how much I disagree with Mr. Ley's comments regarding contingent fees.

First, his implication that anyone who doesn't produce or create a "thing" in life causes higher taxes, regulations and social destruction is ridiculous. "The world according to Mr. Ley," in other words, doesn't need lawyers, doctors, clergymen, bartenders, cab drivers, waiters, musicians, artists, writers, poets, public servants, etc., because they provide services and not "bricks, cars or shirts"!

Mr. Ley's belief that there is no legimate and historical need for checks and balances on those who do make those cars, toys, bricks, ships and chemicals is proof that he has been sleepwalking those 30 years.

His assertion that somehow lawyer contingent fees have dramatic or even measurable effects on taxes or insurance premiums is fiction and patently false! There does not exist even one credible study that supports that nonsense.

Recoveries do not come from the tooth fairy, Mr. Ley; by the way, there is no tooth fairy! Sorry! However, there are industries, corporations and entities that produce "things" for unimaginable profit that indiscriminately kill and maim those who supply those "profits."

I am a litigator; I am not a hero. I am, however, incredibly proud to do what I do. Not forgetting the countless hours of pro bono work freely provided by my colleagues — save the wealthy, how else would a child burned beyond recognition or a father crippled for life or the mother vegetablized by, at best, negligent producers of things and worst, intentionally dehumanized by the theory of "acceptable losses," possibly afford to be compensated for terrible wrongs but for the willingness of my colleagues to risk thousands of hours, tens of thousands of dollars of their own to champion the cause(s) for those less fortunate or incapable to do so on their own?

The legislators make the laws; the jucidiary enforces those laws. Mr. Ley is mixed up, ill-informed and sleepwalking. Yo! Wake up!