July 2001

Letters

I wholeheartedly concur with Jan Eric Peterson's editorial on the healing power of the apology. I've been working on the defense side of litigation and claims resolution since 1978, the last 11 years with Washington Mutual. At the risk of making admissions against interest, I have been issuing apologies for years on behalf of the bank in cases where I have felt that our customer had legitimate grounds to feel that she could have been treated better. The apologies have gone a long way toward diffusing anger and resolving the problem. I hope your suggested evidence rule is adopted.

Here's a little something I wrote and often think about.

Asked, "Who is the rich man?" Epictetus replied, "He who is content."

I was in court yesterday with clients on the criminal calendar. I was smiling and happy and as usual enjoying myself and my surroundings. Clearly the judge thought this most inappropriate as was indicated by the scowling look and the stern glaring from the bench. I thought to myself, "Give it a break, Judge; if you want to know why I'm happy, just ask. I'll be glad to tell you." There are lots of reasons I'm smiling — here are just a few:

•  I'm not wearing silver bracelets and orange coveralls. Life has been good to me, and I'm a lot more fortunate then many people I come in contact with, certainly many of my clients.

•  I'm not poverty-stricken or drug-addicted; I have a loving home and functional family. I am not an accused, or one of the spectators in the gallery watching a son or daughter being sentenced to jail. For this I am happy.

•  I'm smiling because I truly like my job. Being a lawyer is fun — you get paid to talk! It's every chatty Irishman's dream. Simply amazing. Not only that, but look at the people I work with. By and large, my fellow lawyers are smart, well-educated and compassionate people. They are witty, and fun to talk to; in general they are professional and articulate. Heck, some of them even know how to play golf. Every day I wake up and actually look forward to seeing and talking with the people I work with. Because of this, I am smiling, Your Honor.

•  I am smiling, Judge, because just like you, I am an attorney, a counselor at law. I am a very powerful person; I have learned the law and legal process. I have the ability to truly do good in today's world, to help others, to prevent injustice. Yes, like Superman, we lawyers can indeed fight for truth, justice and the American way. Lawyers have historically been powerful people in society, working to right wrongs, fight for those less fortunate, and make the world a better place. To be allowed to follow that tradition makes me happy, and that, Your Honor, is why I'm smiling.

In their article examining the impact of longevity on divorce settlements (Bar News, May 2001, p. 21), Cam Hall, Jan Reha and Lisa Peters present what is clearly a well thought out and reasoned analysis. My comments focus on the implication contained within the article that reasonable and effective spousal maintenance arrangements for the lower-earning spouse are vulnerable to being given short shrift in a mediated settlement.

The authors make the following observations with respect to the spousal support negotiating process: "Too little thought is given to what happens when the maintenance terminates and medical coverage ends, except that the wife is expected to have a job by then and pay her own bills. This is especially true in mediations when the amount and length of maintenance often becomes an easy target for a negotiated limitation."

Parties who participate in the mediation of their dissolution case typically engage in one of two distinct processes: (1) they meet together with a professional mediator in joint session (typically without legal counsel present) to discuss and resolve their issues, or (2) they attend a pretrial settlement conference/mediation conducted by a professional mediator, where they do not typically meet jointly, where counsel is present, and the mediator "shuttle mediates." In the first scenario, a competent mediator will always strongly suggest that the parties have access to legal counsel, as well as any other professional (such as a career counselor or financial advisor) who can provide them the advice and guidance they need to make informed decisions. In the second scenario, it is possible the parties have availed themselves of input from various sources. Of course, counsel is present for immediate consultation during this mediation process.

If a lower-earning or financially disadvantaged spouse participates in either of the above mediation processes, and he/she ends up negotiating a spousal support or financial settlement that does not appear to serve the party's long-term financial needs, wherein lies responsibility? Should the attorney who represented or advised the party have been better prepared or more aggressive? Did the higher-earning spouse improperly influence or strong-arm the settlement? Did the mediator falter in not providing a settlement environment that fairly empowered both parties? Did the parties themselves seek proper advice and guidance from reasoned professionals? Or did the party simply agree to the deal to get the case over with following many months of court hearings, discovery and negotiations? How many times does the above scenario play itself out where negotiations have occurred primarily between legal counsel, and settlement is reached without the parties participating in mediation? How different would answers to the above questions be if one or both parties were, for whatever reason, not represented by an attorney?

Many factors play a part in a negotiated settlement. If a mediated spousal support or financial package appears to fall short of the mark, it is wise to look at everything that could influence the result.

While flipping through Bar News (May 2001) the advertisements of Mr. Luvera and Fury Bailey were, to me, striking. The main content were dollar figures of recent awards. Thoughts of driving past billboards in Palm Springs and Las Vegas came to mind. There, law firms advertise in such a way that I feel momentarily embarrassed to be an attorney. I was always glad that at least the lawyers in my state were not like that. There is so much more to being a good lawyer who serves his or her clients than just dollar amounts. I feel that type of advertising cheapens our value rather than enhances it. In the early days, lawyers (as the clergy) were "above" charging for their time. Has this profession fallen so far that we are only about money? Are we but glorified bill collectors? Maybe I am naive, but this type of advertising leaves a bitter taste in my mouth no matter how much respect I have for the particular law firms involved.

In reference to Roger Ley's letter concerning IOLTA (May 2001, p. 8), he is incorrect when he states that the Supreme Court provided funding for Columbia Legal Services. In fact, the Supreme Court, along with the governor and the Board of Governors of the Washington State Bar Association, each appoint three trustees to the board of the Legal Foundation of Washington, the recipient of IOLTA funds. It is the duty of the trustees to make all grant decisions. The trustees made grants to 34 organizations throughout Washington state for 2001, including to 24 local bar-supported pro bono programs.

Mr. Ley also referred to a decision by the 9th Circuit in Washington Legal Foundation v. Legal Foundation of Washington that IOLTA is an unconstitutional taking. The decision of the three-judge panel in that case is not precedent in the 9th Circuit, as the court has granted our petition for rehearing en banc, which will occur on June 21, 2001 in San Francisco.

We welcome this opportunity to have the case reheard en banc, as the 9th Circuit chooses to rehear cases en banc in fewer than one percent of the thousands of cases it decides each year.

The recent attempts by the Board of Governors to create minority positions is one more half-baked idea by a departing Bar president. This is not the first. Remember when the board tried to start our own insurance company and make us all join. Remember just a few years ago when the board, in the thrall of the access to justice folks, wanted to suggest to the Legislature that the B&O tax be raised, but just on lawyers, to support the program. When it was pointed out that we would rather not have our own trade association ask for a tax increase, this idea passed on. Now, we have some half-baked idea from the 70s which won't seem to go away, even though the person who proposed this is no longer the president. The board seems to be living in fear that someone will call them insensitive or racist if they recognize that this is really a stupid idea, probably illegal, and not supported by the membership. I suggest they stop worrying about their image and do their job. The board's current position seems to be that we are all a bunch of insensitive racists and the only way to remedy this is to create these new positions. I am offended by this position, and I suspect I am not alone.

Is there really a problem? I have seen no evidence. We are actually a rather small association. Any member can run for the board. Most of us do not because we cannot afford the time commitment or the loss of income involved. I have served on Bar committees and on the executive board of the Litigation Section, and I understand that Bar leadership is time-consuming, and that many busy lawyers simply do not have the time or interest to serve on the Board of Governors. There is no evidence that minorities are excluded from the workings of our Association. The only African-American person I can recall running for the board was Lem Howell, and he won.

I have a suggestion. If this is such an important issue, let the members of the Association vote on the question. Unless the board is afraid of a little democracy, this is not a problem. If they are not willing to do that, let's recognize this for the window-dressing it is and move on.

In the May 2001 issue (p.15), the Bar News editor makes fun of the Bush administration for excluding the American Bar Association from prior secret review of federal judicial nominees. This is partisan politics, and Bar News should stop doing it.

The WSBA is an administrative agency controlled by the state Supreme Court. It is a government agency. The WSBA is not supposed to engage in partisan politics. Bar News is the agent of the WSBA and is subject to every restriction the WSBA is subject to.

The bias in the editorial is obvious. Editor Panitch accuses the Bush administration and "its collective psyche" of having lost touch with reality. Not a matter of disagreement, but of having lost touch with reality. He points out that Mr. Bush, according to the editor, did not win the popular vote, and implies that he did not win the electoral vote either. He says considering the ABA too liberal is "preposterous — and absolutely predictable." That is, those cretin Republicans are absolutely predictable in their preposterous opinions. Strong stuff. Mr. Panitch's final line is "God save the United States of America" (from the evil George Bush and his politically tested judges).

Now I admit I exaggerate a tiny bit. Mr. Panitch did not call George Bush evil. But everything in his editorial is partisan. It could come from a position paper of the Democratic party.

As far as the ABA itself is concerned, there are plenty of responsible people, such as the Wall Street Journal editors, who think the ABA is indeed the functional equivalent of the Democratic party. This is a live issue, not a matter of anyone's fantasy.

I suspect that eleemosynary institutions attract ideologically charged people, so it is likely that an organization such as the ABA would have an ideological, not a charitable, focus.

As far as secret review by the ABA or anyone else is concerned, this is not a good idea either. Our government is based on the principle of open discussion of candidates for office. That enables the people, not the members of an aristocratic committee at the ABA, to evaluate the candidates, and that makes our society more democratic. The fact that the press and some politicians sometimes trumpet irrelevant information is not a reason to walk away from this principle of democratic government. The Bar Association should stop being a partisan force.

I write to offer a special contribution of two pennies to the Association to repay Mr. Panitch for his May "Two Cents' Worth" column which, I fear, was greatly overvalued even at that meager sum.

I read Bar News for discussion of issues and events of general interest to the membership of our Association. I do not expect to have to wade through a partisan jeremiad bewailing the decision of the Bush administration to terminate the ABA's vetting of proposed federal judges. I suspect that there are quite a few members of this Association who have terminated or not renewed their ABA memberships due to the proclivity of its leadership to take positions on political and social issues, and to do so in a manner that reflects a partisan slant.

Therefore, while there is certainly room to differ on the wisdom of the administration's decision, I see no evidence that such a decision is "preposterous" — a term clearly reflecting the editor's belief that his point of view is revealed truth and that any contrary view cannot possibly be based on a reasonable difference of opinion and is, therefore, unassailably the product of the basest sort of political pandering.

The editor's own political position is made quite clear by his leap into the fray over the Florida vote count and the Supreme Court decision thereon, and his description of the administration "making new enemies at every turn, and even offending people who want to be friends." It's pretty obvious that Mr. Panitch is not a "new" enemy.

The editor of the Seattle Times can take whatever editorial position he wishes because subscription or purchase of the newspaper is strictly voluntary and an offended reader can simply cancel or not buy the paper. However, Bar News is supported by dues imposed as a mandatory charge for the privilege of practicing law in this state. Since that is the case I don't want to read about Mr. Panitch's political theories and beliefs in a publication I am required to subsidize. If he wishes to beat up on the national administration, let him hire a hall or publish at his own expense, and not in a publication that is supposed to serve the interests, and reflect the values, of this entire Association.

You have overstated the value of your article "Two Cents' Worth" in the May 2001 edition of Bar News. Instead of demonstrating that the American Bar Association should retain a role in judicial nominations, it only reveals some of your own prejudices.

  The ABA has lost its role in judicial nominations because it is not a mainstream organization. Even a cursory review of the ABA's advocacy issues on a wide variety of issues demonstrates it is hardly a mainstream organization. The ABA has a 71-page, single-spaced, two-column publication listing the 1,200 positions it has taken on a wide variety of issues. It reveals the ABA supports taxpayer-funded abortions, supports schools who choose to bar military recruiters, takes advocacy positions regarding government funding of various programs, advocates new federal firearm restrictions, and supports race and gender-based affirmative action. With respect to affirmative action, it is worth noting the ABA specifically encourages affirmative action in judicial selections.

  These positions hardly reflect the mainstream of American political thought. The fact that the ABA is outside the mainstream does not change because the president of the ABA belongs to a large law firm. Indeed, how many of Martha Barnett's partners actually belong to the ABA themselves? Instead of proving your point, your gratuitous comments about Holland & Knight demonstrate your own prejudices. There is simply no basis for your assumption most of the partners voted for President Bush. Furthermore, your immediate segue into calling these presumed Bush voters "robbers" amply demonstrates your dislike for both President Bush and large law firms.

The ABA claims it evaluates judges on the issues of "integrity, judicial temperament and professional competence." According to the ABA, the court system should implement affirmative-action programs. According to voters in Washington and California, the government should not implement such programs. In evaluating a judicial candidate, the ABA can either hypocritically ignore its own positions, or it can determine a state supreme court justice who declines to implement such programs does not have the right "temperament" and "competence" for appointment to the federal bench. Regardless of the path it chooses, the ABA has no role in determining who should be appointed to the bench.

Some reactions to columns in the May Bar News:

President Peterson's encouragement of litigant apologies was a gust of fresh air into the stale and often nasty realm of civil litigation. I support his proposed amendment of ER 408 to say that evidence of an apology would be inadmissible to prove liability or fault for civil wrongdoing. Run with this, Jan!

On the other hand, I oppose the notion floated by Jan Michels that it may be "time to add a lay member to the Board of Governors." Asking whether the "time" has come to do this suggests that it is a good idea, an eventuality just waiting to come to fruition. To this I respond: No, no, a thousand times no. Our profession gets more than enough lay advice from newspaper editorials and letter writers, talk radio, legislative committees and lobbyists, citizen study groups, etc. It's not as though these voices are not heard by Bar Association policymakers. Let's not further dilute our governing board by adding people whose focus may be other than the best interests of our membership.

I wish to comment also on the "Two Cents' Worth" column, in which Editor Mark Panitch was shocked that the Bush administration thinks the ABA is too liberal and will ignore the ABA's judicial candidate evaluations. Here's a flash for you, Mr. Panitch: The ABA is a liberal organization; or at least, its public policy stances are. That the current ABA president comes from a gargantuan Florida firm hardly proves that she, or the ABA, is conservative. I can name you any number of liberal lawyers from big firms.

Here are a few of the official positions the ABA has taken over the years:

• supporting affirmative action over merit hiring and selection;

• advocating strict gun controls;

• calling for a moratorium on the death penalty and recommending measures making its implementation more difficult;

• opposing a constitutional amendment barring flag burning;

• endorsing the Supreme Court's discovery of a right to privacy in Griswold v. Connecticut and Roe v. Wade;

• urging increased funding for the Legal Services Corporation;

• opposing the Vietnam War.

More to the point here, the ABA opposed the Supreme Court nomination of Judge Robert Bork, who had strong personal and professional qualifications, and could only have been challenged on ideological grounds. And the ABA opposed the nomination of Clarence Thomas, whom conservatives generally supported.

Whether or not one agrees with the ABA's positions on the issues (I happen to agree with some but not all), the fact is that those positions are identifiably liberal. They are anathema to most conservative voters and groups. It's no wonder, then, that the Bush administration is not interested in what the ABA has to say about federal judicial nominees.

Finally, it should be noted that this development on the federal level is no different from what has been happening here in Washington, where recent state governors appointing appellate judges have often ignored the approved list of candidates screened by the WSBA's Judicial Recommendation Board.

As of May 18, 2001 there were 22,138 active members of the WSBA with an anticipated increase to about 22,438 by August 4, 2001.

If the members desire a referendum on whether to add two "underrepresented seats" to the Board of Governors, 1,122 active members must petition for such a referendum in accordance with WSBA Bylaws, Article VII, Section I. No fax petitions accepted, however, individual letters/petitions to the WSBA requesting that the board action in May of amending the Bylaws to provide for two additional seats for underrepresented groups be put to a vote of the membership should suffice. These petitions should be to the WSBA before August 1, since there is a 90-day window according to the Bylaws. 

   It would be interesting to hear the feelings of the members.

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