May 2001

Letters

When I saw that the Board of Governors had approved two minority positions for "underrepresented groups" I was more than a little mystified. I have been following the relatively lengthy debate, and never really thought the result would be the vote the board eventually achieved. I follow the Bar's goings-on pretty regularly, and even know a couple of past and present governors. I have always had the impression that the governors were selected in a largely democratic fashion, or at the very least, that any member of the Bar was potentially eligible to hold a position as a governor. To my knowledge, the board has never had a practice of actively excluding candidates on the basis of race, age, sex, or any other arbitrary designation. I also was not able to find any evidence that anyone on the board had actively sought to counter the interests of any person or group based upon race, religion, sex, etc. Thus, I have been hard pressed to see where there has been an actual problem of underrepresentation of any segment of our society.

I am left with the conclusion that the board acted to provide the two positions for one of three possible reasons. One is that the actions of the board have had either the intended or unintended results of acting to exclude the interests of some minority group(s), and they are now seeking to remedy that. I cannot see any evidence whatsoever that the board has acted in such a fashion. A second possible conclusion is that the board is pandering to minority groups for political gain or for the sake of good appearance. This seems a bit too cynical a conclusion, and one I choose not to accept at this time. The third and most likely scenario is that the board is seeking to correct a perceived problem that does not actually exist. This bothers me, because the result is that the board is singling out some group(s) of people for special attention for reasons that are less than obvious, thereby skewing the balance of representation that, at least on its face, appears to be determined by nondiscriminatory bases.

I suspect that the majority of the Bar's members are white. I suspect that the majority are also male. I also accept, solely for the sake of argument, that this may be due in part or in whole to discriminatory acts of generations before me (I am 37). I like to think, however, that the Bar strives to represent all of its constituents in equal measure without regard to what they look like, whom they worship (or don't), or any other sort of discriminatory basis. Perhaps I am being naive. Whether that is true or not, I certainly have not seen evidence in my 12-plus years as a member of this Bar that the board has been actively or tacitly engaging in any discriminatory practice, and to my reading of the debate that has been carrying on, no one has presented any such evidence. I am left with the sad conclusion that the Bar has just taken a rather dramatic step to remedy a nonexistent problem.

I am, however, willing to look at this positively. I am a mutt, a mixed breed. I am also overweight, I tend toward obsessive-compulsive disorder (although in pretty mild form), and I need glasses to read. Thus, I am asking the board to address my sisters and brothers in creating one of these positions to represent my previously underrepresented class: overweight, farsighted, Irish-Scottish-Austrian-German-Welsh-French-English, thirty-somethings with OCD. We have been ignored for far too long, and would ask the governors to dedicate one of the newly created positions for our underrepresented clan. Thank you.

I am responding to the article by Lucy Isaki (Bar News, March 2001, p. 19) defending the IOLTA program against a 9th Circuit decision which rules that the program is an unconstitutional taking.

The program is unconstitutional, but for a different reason from that advanced in the 9th Circuit. Courts have to be neutral and magistrates have to be detached. If they are not, then their decisions violate the due process clause and the republican form of government clause of the Constitution. In the case of IOLTA, the Washington Supreme Court has enacted what amounts to legislation whose primary purpose is to fund and subsidize Columbia Legal Services (CLS). The subsidy is an important part of the CLS budget. But, neither the Supreme Court nor any other court can be neutral in a case brought by CLS, because the court has already expressed its sympathy by providing funding for CLS. For example, it would be embarrassing for any court to find a CLS lawyer in contempt after the Supreme Court has subsidized that lawyer.

Reciprocally, CLS lawyers are compromised, because half of the function of a lawyer is to challenge the assertion of the court's power over its client. CLS cannot vigorously challenge the authority of the Supreme Court when the Court helps pay its way. Even if CLS asks the Court to assert power over someone else, or asks for a benefit from the Court, which is the other half of the lawyer's function, the claim for relief will be affected by the possibility that the request will alienate the Court and cut off the funding.

In brief words, courts cannot pay lawyers. Lawyers cannot accept pay from courts. The conflict of interest described above extends beyond favoritism for particular groups. By legislating the taking of interest, the Court has biased itself should the Legislature attempt a similar taking. The Supreme Court couldn't rule on whether the Legislature can take interest on small accounts, or any similar taking, when the Court has not only already done so itself, but even supports litigation in federal court! This encourages the Legislature to act with impunity because there is now no neutral court where a person aggrieved by the taking may go. Everyone, not just people who don't have a conflict with the Court's positions, must have access to state courts, as implied by the republican form of government clause. There are federal courts, but this is awkward, and deprives the aggrieved party of feasible access to justice.

The issue considered in the Bar News article is the "taking" argument. Government cannot take property of private parties without just compensation, and this applies whether the property is real or personal. CLS and the Supreme Court argue that trust account interest is minimal and cannot be used by the client/owner, and therefore the Supreme Court can give the interest to CLS and other beneficiaries.

The simplest answer to this is that trust account money is private property, and the concept of private property means the right to determine who, if anyone, gets the benefit of it. Neither the government nor the Supreme Court has the right to say that since a person cannot use the product of his or her labor, then the government can take it. An analogy is illuminating. Assume that an apple farmer owns real estate and has a crop that cannot be harvested and will be lost to the farmer. Usufruct. The farmer has the right to say who if anyone will get the benefit of the property. The farmer may say that no one will get the property, and the farmer might say that it goes to the neighbors or to a church or charity. The gift is more likely if the government has not threatened the farmer with loss of license if the money is not turned over to CLS or other designees chosen by them.

The hypothetical above is the most favorable to CLS and IOLTA advocates. Trust interest is often recoverable, and becomes more so with faster computers. It is probably easy to maintain subaccounts and pay small amounts of interest to clients. The discipline rules, incidentally, do not require lawyers to maintain interest-bearing accounts for clients whenever possible. They say lawyers can figure their own legal fees and the amount of interest that would be earned in deciding whether to pay interest to the owners or to IOLTA. RPC 1.14(c) (3). The rule has no standards for making these determinations and is unfair to clients. It encourages the lawyer to give the money to IOLTA.

There is obvious direct economic impact. The bank has to write the check to IOLTA, and this cost is passed on to customers and stockholders of the bank. Large firms generate large amounts of interest, which banks undoubtedly pass the benefit of to the law firm. These benefits enable the law firm to control expenses and provide more and better access to justice to its clients.

The implications of the IOLTA argument are alarming. If the government may take trust interest, it may take the farmer's crop and anything else it says the owner cannot use. Any usufruct. Relief from court is not reassuring, as the Supreme Court already champions its program of taking interest. Beyond that is the tremendous burden on an individual or institution to conduct litigation challenging a taking.

The economic impact on the client is real. $10,000 held for a year even at three percent generates $300 in interest. Most clients would not forego even the $25 of interest on money held just for a month, especially if they knew about it.

The third issue is freedom of speech. The Supreme Court orders that the money of the trust account holder be used not for governmental purposes but to subsidize a private organization, Columbia Legal Services, whose goals the owner may oppose. The government takes money from one private party to enable another private party to disseminate ideas and conduct litigation opposed by the owner of the money. This may well violate the First Amendment.

Ms. Isaki complains that D.C. lawyers "descended" on Washington to file this litigation. In fact, an accountant from Federal Way filed the litigation. He provided accounting services for real estate transactions, and he earned his income, or some of it, from fees from the interest on the money in the escrow account, precisely the money taken by the Supreme Court. After the Supreme Court confiscated this money, he lost a sizable part of his business. How the Court can regulate real estate escrows in the first place is hard to understand. The accountant hired a sole practitioner in Seattle to sue IOLTA, which he did. Later, a D.C. firm took over management of the litigation.

I will, for the present purpose of offering some praise and some suggestions for more of a good thing, set aside certain convictions I hold that the marketplace, not the WSBA, should determine how much continuing legal education an attorney requires.

As a nonpracticing attorney who wishes to preserve my right to practice, I am pleased to see some heroic volunteer efforts and some rule modifications that mitigate the burden that acquiring CLE credits can place on practitioners and nonpracticing attorneys alike.

Live CLEs can be purposeful events. You may also get to see what other people are knitting, what magazines they are reading, breathe canned meeting-room air for several hours — all the venerable elements of putting in your time.

Some attorneys absorb a cost of $70 or more per CLE credit hour without flinching, while others are obliged to survey five-county landscapes for bargains. For some, $30 a credit is onerous, but it's the best deal out there. Bother that you'll never see a case in that area of practice; it's a bargain.

Welcome the new rule accepting 15

A/V CLE credits per triennium. Imagine selecting a topic based on interest rather than price. You can tune in and tune out according to time and motivation factors.

What a boon to those of us in the boondocks. Washington lawyers exist outside of Seattle! Check out Langley, Newport, Colbert, Ephrata and Juneau, Alaska — do Bar policymakers know where those places are? Even from Vashon Island, I spend four hours per round trip to Seattle Center by ferry and bus. A/V CLEs provide access to a basic Bar-mandated necessity.

But why impose a 15-credit limit for

A/V CLEs? The Bar should permit attorneys to fulfill the entire requirement using A/V materials. This would provide an especially practical solution for rural, out-of-state, busy and low-budget attorneys.

Then there is the issue of the Bar profiteering from A/V materials. Under current policy, each attorney must purchase separate A/V materials to report credit, i.e., two or more attorneys may not share the cost of a video CLE and each must report credit. Why must my husband and I, both members of the same firm, each pay the full price of a set of A/V materials we will share? The Bar should repeal this irrational policy of unnecessary duplication of costs and materials. A small fee that covers the cost of processing reported credits should be all that is charged to multiple users of A/V materials.

Ed Hiskes offers a rational solution to CLE cost and multiple-use issues. Through his Free CLE project, Mr. Hiskes has produced a CD containing approximately 16 hours of CLE materials. The Free CLE CD contains audio recordings of several diverse presentations, as well as written materials which the "attender" may read with the lecture, and print. Mr. Hiskes distributes the CD to anyone who requests it ( http://www.freecle.com ). Because Mr. Hiskes wishes not to complicate his tax life, he accepts no compensation even for the cost of production and distribution of his CD. (How nice it would be if the WSBA picked up the tab for Mr. Hiskes's postage, mailers and CD blanks.)

If you have not heard of Free CLE, don't feel out of the loop. The WSBA Web site contains no links to Mr. Hiskes's site, nor any references to the Free CLE CD on any of its own CLE links. Ahem. I learned of Free CLE quite providentially from Barrie Althoff at a CLE I attended, while railing to Barrie about all of the above. Thank you, Barrie, for disclosing the best-kept secret in the WSBA, and thank you, Ed, for your tireless volunteer efforts at bringing access to justice to your fellow attorneys.

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