January 2001

Letters

Seattle attorney Brian J. Waid calls our readers' attention to a decision from Div. I of the Court of Appeals in which an attorney was sanctioned $500 for citing an unpublished decision after first calling the Court's attention to the 8th Circuit decision holding them to be unconstitutional. Here is what Div. I said in Dwyer v. Kislak, __Wn. App __, 2000 Wash. App, Lexis 2408, 2000 WL 1737833, Case No. 44969-9-I (filed on November 27, 2000):

"Finally, we impose sanctions against counsel for Kislak in the sum of $500, because counsel cited and discussed at length in their appellate brief an unpublished opinion of this court in direct violation of RAP 10.4(h). We are aware of the scholarly opinion of the 8th Circuit holding unconstitutional its court rule prohibiting citation to unpublished authority. [Anastasoff v. United States, 223 F.3d 898 (8th Cir. Mo. 2000)].

The court strongly criticized rules like RAP 10.4(h), reasoning that they have a denigrating effect on the doctrine of precedent. Ironically, it is that doctrine of precedent on which we rely in imposing sanctions and which we are loathe to ignore. RCW 2.06.040 prohibits our publication of cases lacking precedential value and our case law holds that such cases do not become part of the common law of our state. Counsel for Kislak shall direct its payment to the clerk of this court."

We look forward to a definitive ruling on this issue from both the Washington and the United States supreme courts. — Ed.

Editor:
Gordon and Cook's excellent article on the deliberate intention exception to the Industrial Insurance Act (Bar News, November 2000, p. 26) exposes an underlying policy weakness that cannot be addressed through litigation. Washington state law provides that an injured worker must seek relief through the workers' compensation system unless "injury results to a worker from the deliberate intention of his or her employer.…" With no middle ground, workers are forced to risk the uncertainty of tort litigation where their employer's intentional failure to follow safety standards has resulted in injury.

The legal guidelines of Birklid v. Boeing will be useful only to those workers who are desperate enough or tenacious enough to persist in litigation through the appellate courts just to overcome a summary judgment motion to dismiss. While it is progress that the Supreme Court has moved away from the rigid assault and battery standard, the new standard invites litigation which will produce many of the same uncertainties and uneven results which characterized the pre-IIA days.

What is needed is a statutory framework to address the situations described in the article's case summaries, where the courts did not find deliberate intention. In virtually all of these cases, the employer chose to ignore safety standards established under the Occupational Safety & Health Act or under Labor & Industries regulations. Industrial insurance laws from other states address this problem by providing for enhanced recovery for the worker where such violations are found. In Wisconsin, for example, workers are entitled to a percentage increase in their permanent disability awards where the agency finds a violation of OSHA or WISHA standards.

Washington should adopt a similar program. Assessing enhanced awards for injuries suffered as a result of workplace safety standards violations would result in an immediate economic penalty, which would counteract the economic incentive for the employer to ignore such standards. Attorneys and workers will be motivated to examine the circumstances of the injury and report violations. Hopefully, the result would be safer workplaces and more careful compliance. The penalty would be broadly applied at the level of the claims representative or at the level of the administrative appeal. Thus, more workers would benefit than those few who have the services of an excellent personal injury lawyer.

Editor:
On October 11, 2000, the Supreme Court of Washington signed an order under Cause Number 25700-A-691 adopting an amendment to RPC 8.4(g) and adding subsection (h). Only one justice did not sign the order, the Hon. Justice Richard Sanders.

Section (g) adds "sexual orientation" to sex, race, age, creed, religion, color, national origin, disability or mental status as a classification of protected individuals from discrimination, where the act of discrimination is committed in connection with the lawyer's professional activities. The change to section (g) allows the lawyer to decline a case or withdraw from it without disciplinary action if done in accordance with RPC 1.15.

Section (h) is an entirely new section to RPC 8.4. This section states it is professional misconduct for a lawyer to engage in conduct prejudicial to the administration of justice toward judges, other parties and/or their counsel, witnesses and/or their counsel, jurors, or court personnel or officers on the basis of sex, race, age, creed, religion, color, national origin, disability, sexual orientation or marital status. A reasonable person basis is used to interpret the words or actions of the attorney to determine a violation of this rule.

When the State Bar first began their program to force this rule on its membership, many attorneys joined in an attempt to stop the adoption. That failed. We are now stuck with this rule. Time will tell how it will be applied.

I have a real problem with this rule in the fact that I don't understand it. No definition follows the term "sexual orientation." None of the other classifications require definition. Prosecuting attorneys throughout Washington could be in trouble for showing prejudice against those whose "sexual orientation" is toward dead bodies, Rhode Island Red chickens, or ten-year-old boys with blond hair. If it was the intent of the Supreme Court to limit its "sexual orientation" to those who practice anal sex, they should have spelled out which sexual perversions we are being forced to tolerate. I personally don't see any difference between sexual deviants who practice homosexuality, pedophilia, necrophilia, or those who have sex with statues. (I don't know which "philia" that is). All are sexually perverted and in violation of the laws of nature.

I refrain from calling anyone a name they don't prefer to be labeled, but according to the reasonable man standard, I might be in violation of the rule if I were to behave differently toward a sexual deviant than to a normal person, even if it was unknowingly.

I realize that many, maybe even the majority of attorneys, believe that "sexual orientation" should be afforded the same protection from discrimination as the other bases. I come from an older generation and have different experience than the new breed. When I was a Los Angeles police officer, Section 288(a) of the California Penal Code called for the punishment of homosexuals (we didn't care if they were consenting) from one year in county jail to 15 years in prison. Because it was a felony, we had to investigate the crime. From that investigation I discovered how degrading and violating homosexuality can be to those practicing it. I do not feel it is behavior that society should tolerate or protect. The "don't ask, don't tell" policy of the military should suffice. But homosexuals are not satisfied with that because it prevents them from flaunting their immoral behavior in front of those who are disgusted by it.

As an attorney, I will speak up for the morals of the society in which I live. Unfortunately, it seems that even those who hold the highest judicial office of our state have lost the moral standard allowing a rule punishing those who are able to discriminate the moral from the immoral.

Editor:
In his commentary "Starving at the Banquet of Justice" (Bar News, November 2000, p. 46), Barrie Althoff used a term that is not heard much in America today: "the oppressed." The common perception seems to be that no one is oppressed in our country today. Certainly we have "the poor," but supposedly they are showered by governmental largess. We have "victims," but they are protected by various advocacy groups. And criminals are said to have more rights than anyone — that and they get a lawyer for free. Additionally, our public and political rhetoric presents the view that the only "oppressed" group in America today are middle-class taxpayers.

In such a world, it is difficult to determine who "the oppressed" really are. Are they, for example, the working poor who get evicted because they cannot afford an attorney to protect their rights, and can't get legal assistance because they make too much money? 

The problem of access to justice — or for our purposes, access to an attorney —occurs on many levels. It is not just that the government has cut funding for legal services; it is that the public does not support the idea that the poor should get subsidized legal service when they themselves can't afford it. It is not just that most people cannot afford to hire an attorney (even the lowest priced attorneys charge upwards of $100 per hour, meaning that even relatively simple problems will cost thousands of dollars); it is that our society values everything based on economic value, which results in the perception that "good" lawyers are high-priced lawyers, which in turn results in big corporations paying exorbitant legal fees for "the best" lawyers, which results in driving up legal fees and legal salaries.

Mr. Althoff's solution will certainly help provide wider access to justice, but it is really only a Band-Aid. The problem will continue — if not grow — until the law is treated as something other than a commodity that can be bought and sold. Until that time, it will go to the highest bidder.

Editor:
Let me begin by apologizing if the tone of this letter bespeaks my irritation. However, that is the euphemism most appropriate to the feelings engendered by yet another critical attack on the judicial screening process of the King County Bar Association (KCBA) (Letters, Bar News, November 2000, p. 10) by one who obviously knows not of what they write. Cronk claims that he has practiced for 37 years, but a serious question arises regarding where those years were spent, based upon the lack of knowledge his letter demonstrates.

I have served on the KCBA Judicial Screening Committee (JSC) as a member, chair and co-chair, and have participated in its judicial screening processes for the past six years. Part of that time was spent on JSC II (when there were two divisions, one for district and municipal courts [II], and one for superior and appellate courts [I]), part on JSC I, as chair of both, and as co-chair over the (re-)combined JSC. That experience puts me in a position to categorically and emphatically state that it would be difficult to find a more dedicated, hard-working and unbiased group of people than those who serve on the KCBA's JSC.

Cronk criticizes the rating process as flawed in its evaluators, their "apparent biases" (his words), and the lack of time and effort put into the task. As chair, one of the primary objectives is to attract and maintain the broadest spectrum of membership in the JSC, including all types of practice and members of both genders, and every race, creed, color, religion, gender, sexual preference and national origin. One guiding principle is that the members should have at least a modicum of experience in the court(s) for which they will screen candidates, in this way assuring that we have members who "have been there" and know what characteristics are required to adequately fulfill the functions of judge in their chosen court(s). Personally, I am a sole practitioner, but have worked in a corporate environment, in small firms, and in the public sector. During my tenure on the JSC, there were several other solo and small-firm members, as well as members of large, downtown firms. The JSC comprises 63 members from all areas of practice (emphasis being placed on litigators) and that number includes nonlawyers. From this roster, panels of at least 12 members are selected for the review of several candidates on an as-needed basis. During my tenure there were a few (not enough, by my standards) government lawyers and there were also nonlawyer members on the panels who gave very insightful perspectives on the process, the candidates, and the particular issues arising in each case.

Cronk gives far too short a shrift to the process: it is not simply a matter of reviewing a questionnaire and participating in a 20-minute interview. The questionnaire requires the identification of approximately 50 references, only 10 of which are up to the candidate to select; the others are judges and lawyers (opposing counsel) on their last five trials, judges and lawyers from their 10 most significant trials, and other categories which prevent "cherry-picking" the candidate's best friends in the profession. It also requires nonlawyer references so that the panel can speak to people who know the candidate outside of their legal/professional life. Each member of a panel assigned to review a candidate is then randomly assigned a portion of those references two weeks prior to the scheduled interview. These members are required to conduct a formatted telephone interview of each person (there is a form and a script available to assure that all necessary topics are covered), which typically takes approximately 10 to 15 minutes each. Frequently, a given reference provides additional references who are also contacted. My own experience was that I usually spent about two to four hours doing these interviews for each candidate. These interviews are confidential (as they must be to get the references to be candid and frank in their comments), but the subjects covered include all of the rating criteria which are published in the JSC bylaws.

If Cronk had taken the time, he could have read all about this in KCBA President Fred Noland's column in the September 2000, KCBA Bar Bulletin (sent free to all King County lawyers, whether members of the KCBA or not), the front page article by KCBA Executive Director Alice Paine in the October Bar Bulletin, the articles and other publications mentioned in both of those columns, or on the KCBA website, all of which explain the process. These are not secrets held by some clandestine order of "good ol' boys," but Cronk's comments are reminiscent of the old saw about "leading a horse to water." We publish and publicize our "rules" and "standards," but we can't make anyone read them.

There is one critique Cronk makes which has merit — the JSC does not have the time to personally view a candidate in action. However, JSC members frequently have their own personal experiences with a candidate which are shared with the panel. Cronk's suggestion that persons aspiring to the bench be given pro tem assignments during which their performance could be reviewed is, at first blush, intriguing and attractive. However, candidates in such a position are obviously going to put on only their best appearance when they know they are being watched. Common sense tells us (and real life experiences show us) it is far more enlightening to hear how the candidates conducted themselves at a time when they were not under the microscope, or at least believed they were not. That is the picture the JSC achieves through its processes.

Cronk promotes the concept of more reliable information about candidates — the establishment of a published set of defined criteria, the assignment of weights to those criteria. Such uninformed blathering is irritating. Take a look at the JSC bylaws; take a look at the publications referenced above; we already have a "published set of defined criteria." In fact, the JSC, as part of its continual self-analysis and efforts at self-improvement considered and rejected the assignment of weights to the long-established and objective criteria we have used. The reason for the rejection was that it would be too confining for all cases, and impossible to determine how much weight to assign each element. One of the strengths of the JSC is in the number and variety of its members. They come from all backgrounds with all varied experiences and, yes, biases and prejudices (any human who claims not to have any is, simply, not human), but with one common objective: the promotion and continuation of the best possible judges on all the benches in our county. A case could be easily conjured in which a candidate is totally devoid of experience in an area critical to even adequate performance on the bench, and yet achieves the highest rating because he amassed maximum "points" in other criteria.

Paid evaluators? A laudable objective. But when our judges are faced with budget cuts which mandate that they provide and clean their own robes, where does Cronk propose getting the necessary funds? A perfect world might have such a system as Cronk suggests, and a perfect world would not have "mistakes" (quotes because of the 20/20 hindsight required to label it as such) or aberrations such as Justice Sanders and Judge Burrage.

Public financing of judicial campaigns? Again, laudable, but we haven't even been able to achieve that for our nation's highest office and so how, pray tell, will we interest the public to fund these campaigns when we have lawyers like Cronk who know so little about the system of which they are a key element?

I am offended that Cronk condemns "outright appointment" of judges as "flawed" (it has worked for the federal judiciary for 200 years), and in the same breath counts among those flaws the old (and false) bromide of a "good-old-boys network." If this judicial selection issue is as important to him as Cronk claims, why hasn't he joined the KCBA and why hasn't he volunteered to serve on the JSC? If you're not part of the solution, Mr. Cronk, you're part of the problem. And I, for one, would appreciate you keeping the uninformed parts of your opinions to yourself. We who are trying to improve our imperfect human system have our jobs made the more difficult by the dissemination of such misinformation; this is especially so when it comes from one who might be presumed to know what they are talking (or writing) about.

Thank you. I feel much better now.