December 2002

Letters

Another Bar year, another column by the incoming president bemoaning the disrespect given to our profession by the public and our need to work harder to overcome it. It's as predictable as rain in winter. Equally predictable is yet another annual move by the Bar to pass yet another rule showing how little they in fact trust their members to be professionals and act responsibly.

If the Bar Association really believes that its members are responsible professionals, why don't they treat us as such?

The latest proposal comes from the WSBA Pro Bono and Legal Aid Committee. The present RPC 6.1 is a statement of principle that leaves it up to responsible professionals to determine how to mesh their pro bono responsibilities with their other professional responsibilities, their obligations to family, church and community, and other responsibilities they may have. The Bar committee proposes to replace this with a very specific requirement of the number of hours we should feel obligated to provide, limits to the kinds of activities that can count, encouragement to tell teacher just how good (or bad) we have been, and a pat on the head for those who are especially good little boys and girls. Bottom line statement: the Bar doesn't trust us to be responsible professionals in managing our time and range of commitments, but has to tell us just what they expect of us and set up a system to look over our shoulders to make sure we're being obedient.

During my limited years as a member of the Bar I have witnessed an increasing number of such changes made or supported by the Bar. Without going back through years of Bar journals, I can name a few off the top of my head.

Attendance at CLE events is being more closely tracked and monitored. If we were truly viewed as responsible professionals, our word as to the CLEs we attended would be more than sufficient. But apparently we aren't to be considered as such, but as children who need to be signed into class by the teacher.

Several years ago the Bar supported the addition of an ethics requirement to the basic CLE requirement. The CLE requirement itself is an assumption that lawyers are so irresponsible that, left to act on their own, they cannot be trusted to remain current in the law. The addition of an ethics requirement adds insult by assuming that first, we aren't smart or responsible enough to know how much ethics education we need, and second, without constant exposure to ethics teaching we will presumptively fall into sin and error. If we were responsible professionals you would think we could be trusted to make those decisions for ourselves. But the Bar Association obviously doesn't think so.

The Bar's position during the lengthy discussion over the amendment of RPC 8.4 to prohibit certain speech or other acts was a clear indication that the Bar doesn't trust its members to act responsibly or professionally in their exercise of their First Amendment rights of free speech.

There is President Blair's now infamous column in which, using his soapbox paid for by the members of the Bar, he exhorted us to oppose I-200, as though we lacked the wisdom or responsibility to make up our own minds on this issue.

Then, of course, we have the Bar's endorsement of RPC 1.8(k), which would peer into our bedrooms to detect sexual indiscretions. What I find most frightening is the statement of a Bar officer justifying the proposed rule on the grounds that there is no right for lawyers to be "sexual predators." Apparently our professional association's attitude is that we are all potential predators who without threat of disciplinary action by the Bar would use our offices to prey on sexually vulnerable clients. No hint here that maybe we are professionals who can make responsible decisions about who we should and should not sleep with.

The bottom line of all these changes is that even as the Bar exhorts the public to view lawyers as honorable and trustworthy, it continues to treat we who practice law rather than administering the Association as a bunch of untrustworthy, irresponsible and unprofessional men and women.

The Bar's schizophrenic attitude toward its members needs to be remedied. If the Bar believes we are responsible professionals, they should treat us as such. If they don't, they should stop lying to the public telling them we are. Pick one or the other, guys. But this "lawyers are really responsible professionals but we need to treat them like children" hypocrisy needs to go.

While reading the October issue of the Bar News, I read Allison Parker's interview with new WSBA president Dick Manning with keen interest. I was astounded to read our new WSBA president declare that "the median starting salary for lawyers in private practice in Washington is $90,000." This comes as a great surprise to me and, I'm sure, to all the other lawyers who bring down much more realistic (read "lower") salaries out here in the real world.

Perhaps Mr. Manning is referring to Washington, D.C., instead? This I could believe. A well-qualified colleague of mine (law review, top 10 percent, etc.) recently relocated there after only four years of corporate and energy law experience, and he's pulling down about $90,000. Or perhaps $90,000 is the median salary for all lawyers in private practice, including veteran solos and senior partners? This I could also believe, although I'm sure this statistic is skewed by the stratospheric compensation packages of a handful of senior partners and class-action specialists.

I would be interested to learn the actual median starting salary for private practice lawyers, which includes unemployed and under-employed recent admittees. Our state has among the highest unemployment rates in the nation, to which lawyers are unfortunately not immune. In any event, I am curious to see the numbers on which Mr. Manning relied in his statement. Perhaps I can be convinced.

Dick Manning seems like a fine choice for our new WSBA president. However, if he is president of the whole Bar, not just King County, perhaps he should find out what attorneys in the rest of the state are paid. In Snohomish County, I think most people right out of law school would be happy to start at one half of that $90,000. In addition, if he is really concerned about people going into legal services, maybe he should find out what they make, rather than guessing. Mr. Manning may be shocked to find out that, due to their low income, many legal services employees could qualify for the very services they are providing. Perhaps the Bar should be looking at ways to increase funding to legal services. That way, people who want to work in this area can get paid a decent salary, and do not have to choose between doing good or providing for their family.

As a retired prosecutor and a member of the Washington State Bar, I'm offended by the recurring advertisement for the above referenced seminar, prominently labeled: "No prosecutors or law enforcement personnel allowed."

First, that label implies there is "secret stuff" known only to the sponsors of the seminar, which they don't want prosecutors to learn. The truth is that the law is the law, the facts are the facts, and everyone benefits by being on the same page and speedily resolving cases. Prosecutors, defense attorneys, judges and juries have nothing to fear from the truth.

Second, in order for the seminar to qualify for CLE credit hours under the rules of the Washington State Bar, don't the sponsors of seminars open to the general lawyer public, especially those being held in a place of public accommodation, have to admit any lawyer or other qualified person who registers and pays for the seminar?

Judge McSeveney's article in the October Bar News was an excellent survey of the law of judicial independence in Washington and a primer as to the current problems that our judiciary faces. It should be required reading for all attorneys. As "officers of the courts" we should all be vigilant that the independence of the judiciary at all levels is honored, as the current budget crisis will place ever-increasing pressure on the courts to "cut corners." Access to justice for our citizens, whether represented or not, will suffer in ways that will ultimately do irreparable damage to our balanced system of three equal branches.

I object to the proposed RPC 6.1, summarized in the September Bar News (p. 43), which sets forth detailed non-mandatory standards for lawyers to provide "pro bono" services.

The Supreme Court of Washington should not take policy positions on the economic or ideological structure of the legal profession. Courts are supposed to be detached and neutral on all issues. Otherwise they cannot fairly decide cases and apply the law to contestants who comebefore them. This means that the court may not take a position on whether legal services should be market-oriented or government-paid, like "national health." It also means, to cite other examples, the Court cannot have a position favoring or opposing broad application of insurance policies with regard to personal injury plaintiffs, nor can it have a position favoring or opposing one group or another of lawyers. Unfortunately the Supreme Court has done the latter in enacting IOLTA, which is an indirect method of supporting Columbia Legal Services (CLS).

This rule does deviate from the principle of judicial neutrality and does take a policy position on the economic and ideological structure of the legal profession by supporting the Columbia model of providing legal services at public expense, as opposed to the market model of providing legal services controlled and paid by the beneficiary. Amazingly, the rule supports lawyers who litigate in the name of civil rights, civil liberties, or public rights, as well as on behalf of charitable, religious, civil, community, governmental or educational organizations! These lawyers usually support the Democratic party or self-designated conservationists. The Supreme Court should not say such lawyers are any better or worse than those who oppose them. In fact, people who are being sued by so-called public-interest lawyers are perhaps more deserving of assistance than the lawyers who attack them. The Court should not endorse "public rights" or activist lawyers in this indirect fashion and thereby also imply that the Court believes there is any such thing as a justiciable "public right." Many believe that public rights should be determined by the public, in the Legislature, and not by courts, with the assistance of lawyers elected by nobody. This issue should not be prejudged by a court rule favoring so-called public-rights lawyers.

There are questions about the value of charitable or taxpayer-supported delivery of legal services. First, providing free legal services does not encourage the recipient to be responsible. And if the litigation involves welfare services, it doubly discourages the recipient from being responsible. This could be particularly important to immigrants who may be impressionable because they are becoming acclimatized to life in America. Second, public lawyers often promote their own ideology rather than focusing on their clients' needs. They can do this because their clients don't pay them and have no control over them. For example, Columbia sued the post office to demand more rights for general delivery mail rather than expending its taxpayer money to represent individuals. Other examples: public defenders never raise Second Amendment (the right to bear arms) issues because the Second Amendment is not popular with them; public lawyers challenge the authority of the Legislature but few challenge the authority of courts. Third, public lawyers sometimes litigate trivial cases for ideological reasons, or because they hope to win a fee for acting as a private attorney general. However, we have an attorney general elected by the people, and the taxpayer should not have to pay a private lawyer to assume the position of attorney general. Fourth and not least, pro bono or public lawyers often do not do as well as private lawyers, because private lawyers are driven by the need to please their clients, the competitive market, the need to make a living, and the need to get referrals. The pro bono concept implies that unpaid lawyers are just as good as private lawyers.

These issues are debatable. The Supreme Court should not take a position on them or on any of the ideology implied by this rule. It has been said that lawyers are officers of court and are intrinsically within its regulatory jurisdiction. This is not the case. Courts are government agencies with the power to take money and destroy institutions. Asbestos companies are a good example. The function of the lawyer is to protect the client from the power of the court. The attorney is in opposition to the court, not a part of it. The other lawyer petitions the court to take money from someone, or to destroy someone, but the petitioning lawyer is partly in opposition to the court too because that lawyer is subject to being told no.

One final issue is the little penultimate paragraph encouraging lawyers to contribute to agencies that provide legal services to persons of limited means. This presumably means CLS and its affiliates, which already benefit from taxes hidden in filing fees and from the tax on banks in the form of IOLTA. One wonders if this is a precursor to a rule that will compel lawyers to contribute directly to Columbia Legal Services in lieu of doing 30 hours of compulsory "pro bono" work. Thirty hours is quite a bit of time when one considers that many lawyers don't work more than five real billable hours per day, and so donating this amount of time would be like sacrificing each year's vacation to the nebulous cause of being a "pro bono" lawyer. Many lawyers would buy out of this commitment by simply paying another tax, this time to CLS. Whether this plan is in the wings or not, the Supreme Court would stray from the sacred concept of detachment and neutrality if it were to adopt even the current proposed rule encouraging lawyers to give money to CLS, or to any other political, activist or charitable organization.

Our government requires that the Legislature pass laws in the hurly-burly of partisanship, and that the courts decide cases in absolute neutrality. The Supreme Court should start to return to this concept by rejecting this proposed rule.