June 2002

Letters

Your April 2002 issue contained a notice of the death of U.S. District Court Judge William L. Dwyer. The notice contained some interesting biographical information, but it left out the most important thing about him. He had Parkinson's disease, which is incurable and progressively disabling. He could have taken medical retirement years ago. Instead, he stuck to his post like a Roman. For me, Judge Dwyer exemplified the stoic philosophy of the Great Emperor Marcus Aurelius. I wrote him a letter about two years ago, in which I expressed my admiration. I'm glad now that I did write it. He was kind enough to reply. Men and women like Judge Dwyer are examples to all of us.

I read with interest Dale Carlisle's column in April (p. 13) saying that the WSBA will soon be offering member benefits, including health-care insurance and a credit card, two needs WSBA members requested at strategic planning forums held years ago.

WSBA members may be interested in knowing about insurance options available to King County Bar Association members, which could include KCBA associate members, i.e., readers who practice outside King County. The KCBA offers a selection of nine different health-care plans through Northwest Employee Benefits (800-284-1331; or http://www.nwebi.com/, click on "KCBA Plans"). A real advantage to these plans is that even in small offices, staff and attorneys can select different plans based on their needs. Even with staff having different plans, it is easy to administer since you receive just one bill. Cost management is easy too. If you need to set a fixed amount that the office covers for each employee or attorney, the employee can pay the balance.

WSBA members outside King County may join the KCBA as associate members for only $75 per year. Associate members also receive other benefits of membership, such as the monthly Bar Bulletin, reduced rental-car rates, hotel rates and other discounted services. The MBNA credit card not only offers competitive interest rates, but pays a royalty stream supporting our award-winning pro bono programs with every transaction.

While we commend the WSBA for trying to meet members' needs in these offerings, we want WSBA members to know they may access benefits from a local county bar now, and would support the KCBA's vital community service work in so doing. If you'd like to talk with me about any of this, please call.

I write to express my strong disapproval of Bar News Editor Mark Panitch's use of his "Two Cents' Worth" forum to repeatedly advocate a politically and socially liberal viewpoint under the guise of protecting the law. If protecting the law is so important, I wish he would show a little more respect for the First Amendment rights of WSBA members whose dues pay for the platform from which he speaks.

Although my WSBA membership is a condition to my practicing law in Washington, my First Amendment rights are protected by GR 12(c)(2) (prohibiting the WSBA from taking "positions on political or social issues which do not relate to or affect the practice of law or the administration of justice") and Keller v. State Bar of California, 496 U.S. 1 (1990) (prohibiting state bar associations from using mandatory dues to conduct political or ideological activities not reasonably related to regulating the legal provision or improving the quality of legal services). Since taking over as editor of Bar News slightly over a year ago, Mr. Panitch has disregarded these mandates as he uses his column to push a liberal viewpoint on a number of topics where the connections to the WSBA's purposes are tenuous at best.

Mr. Panitch started slowly in January 2001 (p. 17). While purporting to offer an optimistic twist on the ugly 2000 presidential election battle, the cynicism in his fourth paragraph makes it quite clear that he is not at all pleased with the impending outcome. Had this been an isolated incident, I would have given him the benefit of the doubt.

In May 2001, however, he confirms his ideological stance when he takes an irrelevant dig at President Bush's conduct in the 2000 election (p. 15). For the remainder of the article, he unashamedly bashes Bush for removing the ABA from the federal judicial nominee screening process, where he consistently focuses on the political rather than legal aspects of the issue.

In December 2001 (p. 15), Mr. Panitch, for the most part, takes a break from politics to engage in the last acceptable form of bigotry: religious bashing, where he starts by comparing Jerry Falwell to Osama Bin Laden, then proceeds to go through a number of evils done in the name of religion, throughout which his theme is the relativistic position that anyone who advocates for "truth" is a certifiable nut (or equivalent to someone who murdered 3,000 innocent people). How is that relevant to the quality of legal services in our state? Not to leave Bush feeling ignored, however, Mr. Panitch finally gets to his point, which appears to be a warning that the president is about to trample on the Constitution in his efforts to defend it.

In April 2002, Mr. Panitch takes on Bush yet again. He starts by writing that Bush's statement to troops in Anchorage was bad public policy. Next, he slides into yet another rehash/Bush bash regarding the election, again with less than a favorable view of the president. He cites Toobin's Too Close to Call as if it were an objective account of the election, but passes on the chance to (1) uphold the first statement in the Society of Professional Journalists' Code of Ethics (seek truth and report it); and (2) illustrate the time-tested legal principle that justice and truth are best reached through the competition of ideas. For example, he could have at least balanced his sources by also citing someone who disagrees with Toobin (At Any Cost by Bill Sammon comes to an opposite conclusion and is mainstream enough that it outsells Toobin's book on Amazon). Rather he relies upon Toobin as gospel and uses Bush's election tactics as an explanation for the president's disregard for the civil rights of the Taliban and al-Qaida.

Thus, in four out of nine columns to date, Mr. Panitch used his state-sanctioned forum to engage in political speech, and always from a certain viewpoint. Arguably, in each case his column eventually relates to the administration of justice. Since the law permeates all political, social and ideological issues, however, Mr. Panitch will always be able to make that argument for any column he writes. In order to fulfill the purposes of GR 12 and Keller, however, he must keep in mind Keller's requirement that the relationship between the political issue and the regulation of the profession or the quality of legal services be reasonable.

The court stated that "the extreme ends of the spectrum are clear: Compulsory dues may not be expended to endorse or advance a gun control or nuclear weapons freeze initiative." 496 U.S. at 15-16. Certainly a gun-control initiative relates to the law, but the court's common-sense approach demonstrates that at some point an issue becomes more political than legal and should not be addressed with member dues. Moreover, "a given activity might be reasonably related to the Bar's legitimate purposes, and yet possess such strong political or ideological content as to run afoul of the First Amendment." Popejoy v. New Mexico Board of Bar Commissioners, 887 F. Supp. 1422, 1428 n.3 (D.N.M. 1995). Mr. Panitch's strong anti-Bush rhetoric and anti-religious statements further distance his column from the legitimate purposes of the WSBA.

Mr. Panitch's conduct is made all the more offensive by the lip service paid to the topic about which I write. First, he acknowledges the prohibitions to which I refer while simultaneously disregarding them. In April 2002 (p. 15) he writes: "I would never suggest that one administration's political policies are superior or inferior. That would be straying far from the mandate of this magazine to cover legal matters." One not need read too many of his columns to see how ludicrous that statement is. Second, the WSBA's Web site states that the Bar Association uses an "extremely conservative" test for determining nonchargeable activities in compliance with Keller, but then notes that the only nonchargeable activities of the WSBA are those in the legislative arena. Mr. Panitch may or may not be paid for his services to the WSBA, but the column space in Bar News certainly has value, as any advertiser I'm sure could confirm. Thus the WSBA is funding, to some degree, repeated political and ideological speech with compulsory member dues, yet calling such activity chargeable even under an "extremely conservative" test.

Mr. Panitch raises important points upon which reasonable minds could disagree, and he is certainly entitled to both hold and speak his views. I submit, however, that Bar News is not the proper forum. If, as Mr. Panitch writes, a lawyer's "first duty is to protect the law," he can be an example by respecting the First Amendment rights of Washington lawyers who are forced to pay for his column but don't agree with his views.

Arthur R. Paulsen
Tacoma

As the "excoriation" that our partner Arthur D. McGarry expected now begins, the firm wishes to advise that his views as expressed in the April 2002 Bar News (p. 7) do not necessarily reflect the opinions of the partnership. However, we are hopeful that the ensuing discussion will be undertaken in a serious and thoughtful manner, as the debate on this issue is of broad importance within the legal community.

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.