June 2001

Letters

Thank you so much for your article in this month's Bar News ("Crime Victims and the Law," May, p. 28). You led strengthening new insight to many areas of victim rights and needs.

I am the victim assistance director for Lewis County, and often struggle with the reality of the victim's world. Thank you for helping me focus more clearly. Your article will go into my file marked "read once a month" and I'm sure I will quote you quite often. God grant strength and direction to you.

It has been a long time since I have read an article in Bar News that is so "right on" on so many different levels ("Why Not Say 'I'm Sorry,'" May, p. 13). Jan's suggestion with regard to amending ER 408 and adding: "Evidence of an apology or benevolent gestures of sympathy are not admissible to prove liability or fault for, or invalidity of, a claim of civil wrong" is really a great idea. I hope it takes root.

I fully support Mr. Thompson's resolution regarding underrepresented attorneys, and creating additional seats on the BOG. It seems that Mr. Liebler's characterization of any underrepresented group as "arbitrary and capricious" (April Bar News, Letters, p. 7) fails to recognize the benefits of a broad and diverse leadership.

As one of Washington's newest lawyers, and someone who cares deeply about service to community, I strongly believe that the BOG and the general membership would benefit from the perspectives provided by attorneys from underrepresented groups. For example, young lawyers bring a spark of idealism and passion for justice and the legal profession that seems to dull a little with time (and, I suppose, the realities of practice). Yet, our excitement and expectations about the practice of law and lawyers in general may very well provide the BOG with fresh ideas that could be of substantial benefit.

Similarly, other less frequently represented groups will provide different perspectives on issues which will necessarily enhance the BOG as a whole. I applaud the efforts at creating a broader and more diverse BOG, and look forward to the future effect of this resolution.

Eron Berg
Mount Vernon

Does our Board of Governors (BOG) need affirmative action? The BOG resolved to amend WSBA Bylaws to permit the BOG to select two additional BOG voting members from eight special groups of lawyers: women, young, government, criminal defense, prosecution, from outlying areas, ethnic minority and sexual minority. The top 10 reasons this is a bad idea are:

10. Two additional seats cannot satisfy all eight special groups (unless they find a young female public defender and a cross-dressing Albanian deputy prosecutor from Tonasket).

9. To suggest that lawyers from these special groups are incapable of being elected to the BOG is an insult.

8. It has not been shown that lawyers from special groups are unfairly prohibited from winning election to existing BOG seats.

7. Adding chosen BOG members dilutes the vote of our elected BOG representatives.

6. Allowing the BOG to choose BOG members smells like cronyism.

5. It has not been explained why existing BOG members are unable to empathize with and strongly represent lawyers from special groups.

4. Hundreds of diverse voices can be heard by the BOG without making all voices voting members of the BOG.

3. Tokenism by any other name is still tokenism.

2. Only those worthy to win election are worthy to cast votes for the electorate.

1. BOG candidates should be judged by the content of their character and not by other factors.

If BOG members want more diverse membership, let them identify such persons and campaign for their election to existing BOG seats. Privately selecting BOG members through affirmative-action appointment rather than vote of the membership is wrong.

I am a municipal lawyer. In Barrie Althoff's "Ethics and the Real Estate Lawyer" column (March Bar News, p. 40), there is a call-out on page 45: "Similarly, a municipal lawyer knowing a landowner is represented by counsel must communicate only with the counsel and may not communicate directly with the landowner." The call-out evidently correctly states the rule of RPC 4.2. We all understand its application in the traditional circumstances.

The rule applies, of course, not only to municipal lawyers but also to lawyers dealing with the municipality. Mr. Althoff could as well have said: "Similarly, a lawyer knowing that all municipal elected and appointed officials and staff represented by the city attorney must communicate only with the city attorney and may not communicate directly with such officials." Such, however, is not the common understanding among either land use lawyers representing applicants or municipal lawyers in the absence of a disputed case.

Land use lawyers have always felt free to speak directly to elected and appointed officials and staff in my city, although they know I represent these officials and staff in all city matters. On the other hand, I routinely am involved in review of land use applications. I may, for example, attend mandatory pre-application review meetings with a developer I know to be represented, whether or not the developer chooses to bring his or her lawyer, because I am part of the city staff reviewing the application. Nobody has raised either circumstance as a violation of RPC 4.2. I suspect we have each other's consent, although it is implied and not expressed.

Incidentally, Althoff also refers readers to the disciplinary notice in the Nelson case (December 2000) regarding RPC 4.2. This matter does not seem to depend on Nelson's being a municipal lawyer. The notice does not really state enough facts to tell, but if Nelson did no more than respond to the court clerk's direction for the parties to meet with the clerk to inform the court of the status of the case, and that was the "communication" with a represented party, then something is wrong with that decision.

Pat Anderson
Snoqualmie

I am writing on a matter of interest to members who are required to attend and report continuing legal education activities.

The December 2000 issue of Bar News (p. 50) contained a brief discussion of the recent changes in APR 11 regarding mandatory legal education. The article discussed certain changes and implied that "...effective January 1, 2001..." we would, among other things, "... be able to view your CLE attendance record online. "

As of the date of this letter (April 9, 2001), more than three months after January 1, 2001, the WSBA Web site advises that such records will be online "soon."

Moreover, my purpose in writing is to warn members subject to reporting requirements not to rely on WSBA record keeping, but to retain their own records. My own experience with WSBA record keeping has not been comforting.

On November 23, 1999, I sent a registration form and check for attendance at a WSBA seminar on January 13, 2000. These items were received in the WSBA office November 29, 1999, and the check was deposited December 1, 1999. I note that had I registered by credit card, or had I not retained copies of all documents, I would not have had that much information.

When I appeared for the seminar, January 13, 2000, the clerk had no record of my registration or payment. She was kind enough to allow me to attend. The next day I wrote to the WSBA regarding the matter, and sent a copy of my canceled check. I sent the letter by fax and mail, heard nothing for two weeks, so I called the CLE department on January 29. They had neither record of my registration, payment and attendance, nor my letter of January 14, so I sent copies of the documents by fax, mail and messenger to the WSBA on January 31, 2000. I have had no response. I am taking the silence for assent.

Someday it is possible that we will actually have a functioning Web site and I will be able to see what record may exist.

My reference to the referendum process for the members to petition for a review of board action should have been to Bylaw Article VII, Section I, and not to Article III. Since it takes five percent of the active members to petition within 90 days of board action, will the Board of Governors accept faxed individual petitions?

I am sorry for the error.

The WSBA general counsel informs us that faxed petitions cannot be accepted. — Ed.

Readers are invited to submit letters of reasonable length to the editor. They may be sent via e-mail to comm@wsba.org  or provided on disk in any conventional format with accompanying hard copy. Due date is the 10th of the month for the second issue following, e.g., May 10 for publication in the July issue. The editor reserves the right to select excerpts for publication or edit them as appropriate.