April 2002

Letters

I note with sadness the passing of two giants of the legal profession: Judge Stanley Soderland and Ernest L. "Bud" Meyer. Both of these lawyers had a great influence on me. They both began their legal career about the same time, over six decades ago. When I began my legal career as a deputy prosecuting attorney in King County three decades ago, Judge Soderland was recognized as one of the finest judges in the state. I soon discovered why he had earned that reputation. He was simply one the best trial judges I have ever observed.

Bud Meyer was one of the premier lawyers in Olympia when I began my judicial career in Thurston County District Court. When his opponents used 50 pages in their briefs, Bud would need only three. He was the master cross-examiner. His word was his bond. He had a wonderful sense of humor. An example of this sense of humor was displayed during an adverse possession trial which Bud was defending. Plaintiff's counsel argued that children playing in the disputed strip of land was evidence of adverse possession. Bud countered by suggesting that if that argument were valid, he could claim most of south Olympia. (Bud and his wife lived in south Olympia and raised nine boys, four of whom are Olympia lawyers.)

Sometimes the people who influence our lives are unrelated to us. Observing Bud Meyer and Judge Stan Soderland has made me a better lawyer and a better judge. I am grateful to have known both of them. I am proud to be a member of the same profession that they both honored by their careers. They will both be missed.

Fearing that I am making a big mistake for which I will soon be excoriated (I can already see the outraged letters in the next issue), I am going to speak truth to power. The power to which I refer is that of the politically correct sensibilities of the day, as so exquisitely, unerringly and consistently reflected in the pages of Washington State Bar News. The particular embodiment thereof provoking this letter is Ms. Lisa M. Stone's "The Glass-Ceiling Survey" article published in your February issue.

Nobody is supposed to ever question the underlying assumptions of the prevailing sensibilities. To do so is considered by many to be worse than gauche: it is proof of moral turpitude or other grievous fault. Thus, when one challenges the unstated starting point of a politically correct proposition, one invites as surely as the night follows the day ad hominem charges of sexism, racism, classism, depending about whom or what one speaks truth.

One tends to get defensive, saying things like: gee, some of my best friends (even relatives) are women or girls. But, I'll resist that temptation to craven cowardice and just get on with it.

The unstated assumption behind Ms. Stone's article and the survey she reports upon is that there is a problem that needs to be fixed because women do not equally share with men the fruits of power, money and prestige in the upper tiers of the legal profession. After noting that women have made up about half the law students for the past two decades, she laments that women are "underrepresented" in certain areas that she judges to be desirable, e.g., the firm's "decision-making processes" and "power structures," and "overrepresented" in areas that are apparently less worthy, such as "diversity, artwork, public relations [and] philanthropy."

Here is the truth: women, as a group, are different from men, as a group, in ways that bear very directly and significantly on the differences in attained earnings and power that Ms. Stone identifies. The key differences are related to biology and the fact that women can bear children, and frequently do. Men lack this ability, which frees them in turn from certain impediments to attaining the most money and power in the legal profession. There are other differences that may be culturally rather than biologically based, but the gorilla in the living room is definitely that God made women different than men.

Here is another truth: the particular men, as a group, who attain the highest echelons of money, power and prestige in the legal profession, are different from the particular men, as a group, who do not attain the highest echelons. The higher-achieving men tend to be a lot harder working (and are sometimes smarter, although that correlation based on my observations is perhaps less clear) and more goal-driven. Many of the most successful male lawyers have very little "life" other than their profession (although, curiously, they not infrequently have a greater number of wives over their careers). That is their choice.

One never hears anyone say that it is a problem that needs to be fixed that some male lawyers who work harder than other male lawyers therefore get more money and power. Most people would acknowledge that he who works hardest to attain a goal deserves the fruits of any resulting success.

Why then is it a problem if fewer women lawyers, as a percentage of their number, get to the very top echelons of the profession? It is only a problem, moral or otherwise, it seems to me, if there is unfair discrimination against them.

I know many superior women lawyers, and many of them work as hard and successfully as any men lawyers. They tend to be the ones who attain the profession's highest echelons, albeit admittedly in lower number than men. But I also have to say (again, speaking truth to power) that I have observed many women who are very unhappy at having to make the sacrifices that it takes to attain the upper echelons of the profession. That is not surprising, because the same thing is true of many of the male lawyers I have known. But, in my experience, the percentage of women who are unhappy and ultimately (after a couple or a few years of trying) unwilling to make the required sacrifices is significantly higher than that of men. That is the way it is, and I suspect that anybody who has practiced law the last two decades knows (even in the most liberal heart of hearts) that it is true.

So, I am dubious of the implied point of the article that there is a "glass ceiling" keeping women lawyers down. If there is such a ceiling, instead of just different career results following from different career choices and efforts, none of the "data" referred to in Ms. Stone's article provides any good evidence of such a state of affairs. Which is not to deny that individual women may be discriminated against unjustly, for which we have laws that allow case-by-case adjudication.

RE: Barrie Althoff's article on ethics and the law (January Bar News, p. 38), it was the most important and relevant article I have ever read in our journal. Let's be honest. Our policing of unethical lawyers has been a joke for most of my legal career since 1961. This is in spite of the fact that, in my experience, the ethics of lawyers have substantially deteriorated during that period. (We never used to have annually required courses on ethics, as if we could teach ethics in a classroom.) Only after a very critical report by the American Bar Association of that state of affairs did our Bar take steps to police lawyers more effectively.

  But, as Mr. Althoff's article makes very clear, our state Supreme Court still looks out for the welfare of dishonest lawyers more than that of our clients.

  Some of you may be interested in the results of a survey I took while on a recent four-week trip through 10 countries of Europe. I engaged in conversations with hundreds (I am mostly Irish!) of people of all ages, economic situations, sex and educational background. After establishing rapport with them, and without revealing that I was a lawyer, I asked well over a hundred of them what line of work in America they thought was the most dishonest. All but two said "lawyer." (Two said "politician.")

  Now do you want this to continue or do you want it to change? There is only one way to change it. Get rid of those among us, in high and low station, who are cheats. 

Roger Ley's letter in the February Bar News (p. 9), which you titled "Opposition to KCBA Drug Policy Position," asserts that "[m]any, probably most, defendants do not want treatment.… If they wanted treatment, they would have asked for it." The assertions precede comments on heroin addiction and the likelihood of successful treatment.

Do many people who are addicted to heroin want treatment? In its May 2001 report, available on the King County Bar Web site at www.kcba.org, the Treatment Task Force of the KCBA Drug Policy Project presented data suggesting that many do want treatment, but are unable to get it. For example, in the spring of 2001, the King County Health Department had a waiting list of approximately 500 applicants seeking methadone treatment. Some had been waiting since 1999. There is a significant demand for treatment, but for many who need it treatment simply is not available.

"Methadone treatment [according to the National Institutes of Health] significantly lowers illicit opiate drug use, reduces illness and death from drug use, reduces crime, and enhances social productivity." Effective medical treatment of heroin addiction: NIH consensus statement 1997. According to a United States General Accounting Office report that looked critically at studies of the effectiveness of drug treatment: "Methadone maintenance — the approach that has been evaluated using the most rigorous studies, randomized clinical trials — has been shown to be the most effective approach to treating heroin abusers." GAO Report to Congressional Requesters, Drug Abuse: Research Shows Treatment Is Effective, but Benefits May Be Overstated, GAO/HEHS-98-72, March 1998.

The monthly cost of methadone treatment is a tiny fraction of the cost of incarcerating an addicted individual. At present, this treatment is available in a limited number of clinics that cannot serve many who need and want it. In most counties, it is not available at all. By failing to fund methadone treatment adequately, and by otherwise making it difficult to obtain, we as a society are missing our best opportunity to reduce heroin addiction and its associated costs.

Without commenting on the King County drug-policy debate, I'd like to offer a couple of suggestions for attorneys to make to the Legislature, and which the BOG may look to in addition to or in place of the King County proposal.

First, it seems to me that years ago, the law (or the courts in absence of a mandate against the same) allowed conversion of jail time up to one year to be served, day-for-day, in inpatient treatment. This resolved a number of possession cases more easily, thereby lessening the burden on court and jails. It also provided the "carrot" for someone truly motivated for treatment.

Second, Washington should institute drug courts statewide. I practice in Island County, defending adult felony matters. Island County has a drug court for juvenile offenders, but not for adults. Yet if any of my clients who might be eligible for drug court committed their offense across the water (a 15-minute ferry ride), or just off the north end of Whidbey, or across the way on Camano Island, they might be eligible in adjoining counties.

The smaller counties just don't have the resources for drug courts. A statewide system would allow a person to get help and I am told that early studies show a lower recidivism rate from successful drug-court participants. Treatment should focus on who would benefit from help, not where the offense was committed. I know it costs money, but then so do prisons.

Both options allow the courts to exercise discretion, offer substantial enforcement tools, and offer something many sentences or alternatives don't offer: a real chance at rehabilitation. Just a thought.

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.