September 2001

Letters

Editor:
Thank you for publishing the letter some months ago that alerted me to the fact that it is possible to complete CLE requirements without paying $25 an hour for that privilege. Currently Ed Hiskes is pursuing a campaign to try to get the Bar Association to use a portion of our annual fees to cover the cost of CLEs. He has shown that to be possible, by supplying CLEs on CDs. Not all of the members of the Bar Association can afford the normal CLE prices. Since the Bar seems concerned about access to justice, they should probably make it possible for lawyers who pay for CLEs out of their own pockets but can't afford the going rates. It seems quite doable at a modest cost to the Bar Association. Perhaps there is fear of a loss of revenues (read "easy money") by the WSBA, WSTLA and others that oppose such a plan.

Editor:
The 15-hour limit on audio/visual CLE credit has burdened WSBA members by requiring them to attend in-person, "live" CLE seminars to fulfill the bulk of their CLE requirements.

To demonstrate one solution to this problem, the Washington Digital Law Library will present a free "live-via-Internet" seminar on September 14, 2001 at noon PDT, approved by the MCLE Board for 2.5 hours of "live" credit. The seminar, titled "Legal Protection for Software," will be presented by patent attorney Daniel B. Ravicher, speaking from his office in Manhattan.

To listen to the seminar, WSBA members will need an installed copy of the free RealAudio Basic sound program. Instructions for getting and installing RealAudio Basic are available at http://www.freecle.com/. com. Since "seating" will be limited to 500 listeners, WSBA members should preregister and get a password, also via http://www.freecle.com/. Registration opens September 1.

This seminar will demonstrate an exciting technology: (1) it provides "live" CLE credit; (2) it liberates CLE speakers from the need to travel, thus allowing speakers to be recruited from anywhere on the continent; and (3) it is relatively cheap — about 50 cents per listener per hour, which is the fee paid to an Internet broadcasting service provider.

There is bad news, however. The WSBA informs me that it has made a business decision to charge $35 per hour for its own brand of Internet-delivered CLE. This means that the digital law library must change its primary mission from "demonstrating technology and urging the WSBA to do it" to "going it alone." Since I cannot supply 50-cent per hour CLE to 24,000 WSBA members on an indefinite basis, some alternate form of financing, by way of donations, grants, user fees or otherwise, will eventually need to be found. Volunteers, especially those with radio broadcasting experience, or at least aspirations, are also needed.

Editor:
I am responding to the thoughtful letter of Jeffrey C. Mirsepasy (July Bar News, p. 8), who raised concern about my firm's dollar figures of actual recoveries for our clients in our Bar News advertisements. In that the image and dignity of the legal profession have always been an important concern of ours, we carefully considered the implications of this ad before we ran it, using the applicable ABA guidelines and seeking review by a former chief disciplinary counsel of the WSBA.

The first point to be made here is that our advertisement is in a magazine that is not seen by members of the general public, only fellow lawyers. Thus, in no way is this comparable to the Las Vegas highway billboards Mr. Mirsepasy speaks of disparagingly.

As a firm focusing on serious personal-injury matters, a number of our cases come to us on association from other lawyers. The clients in these circumstances typically have suffered severe life-altering injuries or the death of a family member, so the lawyers who associate litigation counsel have an important responsibility to choose wisely. The economic devastation suffered by such clients is often lifelong, and a lawsuit is their only chance to be made whole.

Like it or not, plaintiffs' personal injury litigation is a results business. The track record of a trial lawyer is ultimately measured in the amounts he or she obtains. Hence, this is information that other lawyers want and need to know when deciding whom to associate.

My late father, Robert W. Bailey Jr., raised me to act in a way that I could always look another person in the eye and be proud of who I am and what I've done. Our ad in Bar News passes this test. It is low-key and informational, accurately reflecting results we have been able to achieve for our clients. It meets all applicable ABA guidelines and is in good taste. While I actively share Mr. Mirsepasy's concerns about the dignity of the legal profession, they are misplaced in this circumstance.

Editor:
A few letters to the editor have castigated the editor for using an editorial column to editorialize. I am puzzled. Must an editorial column be free of editorial content, concern only trivial subjects, use the language of pencilnecks, and above all, genuflect to a politician who, it is undisputed, got fewer votes than the other guy? Which side won the American Revolution anyway?

Let us agree that the subject matter of the editorials — a major change in federal judicial nominee evaluation — is fit meat for a bar journal. Let's note that the ABA's role was advisory only; once it did its research, the Senate might ignore it in the mandatory public hearings. And let's keep in mind that this has been a public/private partnership that has worked well and long, saving taxpayers a lot of money. A philosophical conservative (as opposed to a political one) would say, "Leave well enough alone; if it ain't broke, don't fix it."

How, then, might the process be broke? The ABA procedure has rated as "unqualified" five times as many Democratic nominees as Republican nominees. All current members of the U.S. Supreme Court were rated "qualified" or better, including Justice Thomas. On the evidence, the ABA process is biased in favor of Republican, conservative, establishment judges. There's no green hair or pierced noses anywhere on the federal bench.

But the letters assert that there must be a problem, because the ABA has 71 pages of liberal, "outside-the-mainstream" political positions. The letter-writers have confused the ABA as a whole, which has many and varied statements appropriate to a large, mainstream organization, with the ABA judicial evaluation committees, which have far more restricted and task-oriented programs. In their confusion, none of the letters provide evidence of bias on the part of the evaluation committees, nor could they.

Conspiratorial or deconstructionist theories may suggest that the ABA, like any other person or organization, cannot perform any task objectively, but must always be tainted by bias regardless of best efforts. This may be a popular theory in the sort of radical literature studies that caricature Shakespeare as a sex criminal. However, these theories are irrelevant to mature discussion of the judicial selection process. After all, under such theories no judge, however evaluated, could ever rule objectively; the whole judicial branch would be a sham, so why complain?

But even if the ABA's judicial evaluation process were fiendishly perverted to impose the diabolical political views of a half-million radical, tassle-loafered corporate lawyers, what is the evidence that the ABA lies far outside the American mainstream? The letters offer ABA positions on Vietnam, flag-burning, and a constitutional right to privacy in Roe v. Wade and its important predecessor, Griswold v. Connecticut.

The fact is that, give or take a few outliers, ABA positions tend to lie squarely within the broad American mainstream. Are there any Americans who wish we were still fighting in Vietnam? While abortion makes many of us uncomfortable, support for Roe v. Wade as a workable compromise is totally mainstream. And even Justice Scalia opposes a flag-burning amendment; who calls him "too liberal"?

The capper is the right to privacy, a "liberal, out-of-the-mainstream" ABA position first elaborated upon in Griswold (and recently supported again by that liberal Scalia). The more technology invades our privacy, the more important grows Griswold and the right to privacy. Pause a moment, and recall what Griswold was about: the criminalization of birth control. This is not a misprint. Griswold was arrested in Connecticut for the crime of prescribing birth control to a married couple, and not in the 1860s either, but in the 1960s!

Perhaps the ABA was being squishy liberal when, with Griswold, it favored decriminalizing condoms. Perhaps it is liberal to find "privacy" in the Constitution. But I say without fear of contradiction that these "liberal" positions are squarely and solidly mainstream American.

Anyone with any doubts may test the proposition by seeking to invade the privacy of any salt-of-the-earth American construction worker's birth-control practices. When you return from the hospital, you will know this: it is beyond preposterous to claim that the ABA positions on privacy, et cetera, are outside the American mainstream; it is beyond ridiculous; it is a total disconnect from the facts of American life.

But I support the right of Tories not to read words that disturb them, and therefore I make a modest proposal. Perhaps WSBA members should be able to claim a Keller deduction for each page of Bar News that offends them (this page would be a good place to start). From the WSBA budget (on the Web site), I calculate that each printed page costs about 1.5 cents. Panitch's editorials are indeed at least as good as advertised.

Editor:
I applaud the president's column in the June issue of Bar News (p. 13) about lawyers being less than honest. Until such time as more in our profession start taking President Peterson's advice to stop stretching the truth, the public perception of lawyers will remain, essentially, correct.

Editor:
I am an active member of the WSBA (No. 27844). I wish to add my name to the list of Bar members who are requesting a referendum of the entire Bar membership on whether or not to affirm the recent Board of Governors' decision to add two nonelected positions to the board.

While a statement of my reasons for requesting a referendum is not necessary, I would like to take this opportunity to inform you that I believe any selection of additional, unelected governors will be arbitrary and capricious, and a dilution of my rights as a member of the Bar, denying me equal protection of the law and impairing my rights as a citizen of the United States.

While the rationale published by the board claims that this action will somehow increase my participation in the governance of the board and the Bar through installing members of "traditionally underrepresented groups" on the board, I believe this is a specious argument that is a pretext for placing cronies and acquaintances of existing Bar members on the board — persons who will be responsible and loyal only to the board members who appointed them, which will tend to reinforce the power of the majority and decrease the power of minority viewpoints on the board. I personally am much more interested in, and affected by, the political and policy views of board members than I am in whether they have some ancestral or cultural connection to me (a Japanese-American immigrant).

In particular, it is well known that: (a) the majority of the population of the state of Washington resides in the western portion of the state; and (b) that the western portion of the state has historically supported a more liberal political position on major issues, including affirmative action. Therefore, the result of the new rule will be that, in general, the power of the minority of the board, who represent persons from the less populous eastern portion of the state, will be significantly diluted, while the power of the majority from the western portion of the state will be enhanced. As a member of the Bar who has been a resident of the eastern portion of the state, and whose political views are in consonance with the majority of the residents of that region, the action of the board in appointing additional members by majority vote of the board is clearly an unconstitutional deprivation of my equal representation in the governing board that operates as an agency of state government to regulate the profession of law.

I therefore support a referendum of the full Bar membership on this change to the rules governing the Washington State Bar.

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