August 2005

Letters to the Editor

Bar News welcomes letters from readers. We do not run letters that have been printed in, or are pending before, other legal publications whose readership overlaps ours. We ask that, if possible, letters be no more than 500 words in length, and that they be e-mailed to letterstotheeditor@wsba.org or mailed to WSBA, Attn: Letters to the Editor, 2101 Fourth Ave., Ste. 400, Seattle, WA 98121-2330. We reserve the right to edit letters. Bar News does not print anonymous letters, or more than one submission per month from the same contributor.

On the shooting of messengers

Editor:
Several months ago, in March, I believe, Bar News published David Evans’ lengthy letter taking issue with President Ward’s support and encouragement for legal service to the less financially fortunate. I found his article thought-provoking. I understood Mr. Evans’ thesis to be that, in general, individual success or lack thereof in life’s challenges depends on choices one makes. This doesn’t seem to be a particularly new nor controversial concept. I have re-reviewed Mr. Evans’ article and did not find his words to be judgmental, denigrating, nor mean spirited.

I am surprised and disappointed by the way he has been castigated by other WSBA members. Most of the letters disagreeing with Mr. Evans’ thesis were themselves judgmental, denigrating and even guttural. How ironic that the invective toward a fellow member of the bar comes from those who espouse compassion for the less fortunate of our citizens.

Lest I too be painted as small-minded and mean-spirited, let me say that I spend hours monthly doing pro bono and modest-means representation. I believe we should afford legal assistance to all persons we can, whether their plight arises from poor choices or from circumstances beyond their control. Nevertheless, I willingly accept that others may have a different view. When those views have a rational basis, such as Mr. Evans’, they are worth a listen and discussion. As Voltaire said, “I may not agree with what you say, but I will defend to the death your right to say it.”
 
Kenneth V. Hoffman, Vancouver

Licensing nonlawyers is not a bad idea

Editor:
We would like to correct some misconceptions made by a letter in the June 2005 Bar News (Licensing Nonlawyers Is a Bad Idea). It appears that the author of that letter may not clearly understand the role a Legal Technician would play, as described in the Practice of Law Board’s (POLB) proposed Admission to Practice Rule (APR) for non-lawyer practice.

Rather than harming the public with unqualified or inexperienced legal service providers as the writer postulates, the proposed APR would instead set out strict criteria that will for the first time authorize certain qualified individuals to become certified as Legal Technicians, while clamping down on those unlawful business practices that the writer is most concerned about.

The Washington Supreme Court’s Civil Legal Needs Study found that 87 percent of low-income households in Washington experience a civil legal problem each year. Many households experience multiple urgent legal problems, often involving safety or subsistence. Further, lowincome people face 88 percent of their legal problems without help from an attorney. The study found that fully 70 percent of family related problems such as divorce or child support are addressed without any attorney assistance. Many low-income people don’t even realize there are laws to protect them and they often endure miseries that higher income people would never suffer.

The letter writer raises a red herring of incompetent legal counsel improperly advising their clients with deleterious results. He suggests that the state bar should instead, “focus on improving attorney skills in serving their clients more efficiently and competently.” It is clear though that no amount of skill improvement by attorneys can ever hope to fill our state’s huge deficit in delivery of quality legal services, when people can’t afford to pay for those same services.

As envisioned, the APR calls for minimum educational standards, along with CLE and pro bono requirements, as well as a competency exam, prior to obtaining certification as a Legal Technician.

Further, the proposed APR will require the nonlawyers to be held to the same standard of care as an attorney, pursuant to the Rules of Professional Conduct. Of special note, Legal Technicians may not provide any services to a client who requires assistance exceeding the scope of practice authorized by the rule, and must inform the client that the client requires the services of a lawyer. Legal Technicians will be required to follow existing Washington laws regarding fiduciary relationships between his/her clients and in handling conflicts of interest.

Not every legal need requires an attorney. Rather than fearing the arrival of Legal Technicians, attorneys should recognize them to be one more weapon in their arsenal. An educated public will make better decisions. Those situations that can be better addressed by Legal Technicians will serve the public good far better than offering no such service provider choice as is the case today.

Indeed, the introduction and utilization of Legal Technicians may lead to increased usage of attorneys as people gain a better understanding of their rights and those situations calling for engagement of a lawyer rather than a Legal Technician.

By their proposal, the POLB has set high standards for non-lawyer practice in our State that can serve as a model for other states to follow. The proposal seeks to reverse a decades’ long problem and will make Washington State a leader in addressing this important issue. Attorneys should whole-heartedly endorse the proposal and pass words of support to the members of the Board for their fine work.

Kelli Wilcox, Vice President of Professional Development, Washington State Paralegal Association, Seattle

Brian Haberly, Chair, Positions and Issues Committee, Washington State Paralegal Association, Seattle

We should deal with CR 11 motions more fairly

Editor:
I suggest that the WSBA form a committee, approved by the Washington Supreme Court, for the purpose of protecting attorneys from receiving sanctions under CR 11 before any filing occurs. We need some sort of a certificate from the Bar stating that “based upon the facts presented to the committee, CR 11 sanctions are not warranted in this case.”

In his letter in the June 2005 Bar News, Lewis H. Zieske Jr., from Chehalis, in responding to David L. Evans’ letter in the March 2005 Bar News, states that “notions of justice and equal access to justice are such overriding principles that whether they derive from the Constitution or not they remain imbued within our legal system.” Mr. Zieske cites the general foundation of or jurisprudence in that “Everyone is entitled to his/her day in court if our society is to claim that justice is the base of our legal system. That value judgment was made centuries ago and is inherent in our state’s legal system.”

I agree. However, current Washington law now reads that “Everyone, except Attorneys, are entitled to their day in court”: A non-party attorney who receives a CR 11 sanction in Washington is now added to the judgment in the case as a “judgment debtor,” which subjects the attorney to a loss of his or her personal property through statutory supplemental proceedings (See Splash Design, Inc. v. Lee, 104 Wash.App. 38, 14 P.3d 879 (Wash.App.Div.1 12/26/2000): “In the absence of statutory language to the contrary, it would be unfair to deny a party to whom an award is due under CR 11 the benefits and protections of supplemental proceedings just because the sanctioned attorney is a non-party.”). A person receives more due process protections in defending a $60 traffic ticket than a non-party attorney receives to defend the accusation that his or her case is frivolous and thus he or she is subject to a fine of thousands of dollars, which could be solely a monetary sanction or a sanction that includes the opposing party’s attorney fees. In King County, the motion requesting CR 11 sanctions in the form of substantial attorneys’ fees can be done by a six day motion without permitting oral argument.

Despite the words of Justice Brandeis in Chase National Bank v. Norwalk, 291 U.S. 431 (1934), that “Unless duly summoned to appear in a legal proceeding, a person not a privy may rest assured that a judgment recovered therein will not affect his legal rights” (Id. at 441), an attorney in Washington who receives a CR 11 sanction and thus is added to the judgment as a judgment debtor subject to supplemental proceedings cannot be “rest assured” that the judgment against him or her will not affect his legal rights, even though the attorney is not a litigant to the action; the attorney does not receive a summons or a complaint; the attorney is afforded neither a jury trial nor the opportunity to select counsel to represent him or her for the purpose of challenging the facts that accuse the attorney of filing a frivolous action, thus, the attorney is denied access to the court.

Furthermore, the attorney may find that his malpractice legal protection does not cover CR 11 sanctions at all.

A WSBA committee issuing a CR 11 “no violation” certificate before filing the case would allow clients access to the courts because attorneys would not refuse a client’s case out of fear of a CR 11 sanction. Such certificate would reduce real frivolous cases because of the WSBA committee’s input to the attorney; and finally, such a certificate will allow the attorney to get his or her client’s case before the jury without a pre-trial motion for CR 11 sanctions that makes the non-party attorney a “judgment debtor.”

Glen Prior, Fife

Courts impede the people’s right to discriminate

Editor:
Former Chief Justice Richard Guy wrote an editorial on the back page of the June 2005 Bar News praising the judiciary as the branch of government that assures the people that the government is responsible. He says that an independent judiciary is the cornerstone of any democracy “and will preserve and enhance it.”

I disagree.

The cornerstone of democracy is the ability of the people to elect and remove government officials as they please, and fail to please, the voters. To the extent that the judiciary interferes with this process, as in the California election of Gov. Schwarzenegger, the courts are an anti-democratic force.

Judges are human like everyone else, and they are subject to the same external and internal economic and political influences as everyone else, and they have the same desire for power that everyone else has. Therefore judges cannot be trusted any more than anyone else to provide a forum for review of “governmental policies or legislation.” And our government is set up to prevent this from happening. In order to have legitimate republican government, there must be a review and control of the action of each branch of the government. This does not exist if the courts believe they can act as a sort of ombudsman in reviewing the “justice” of some action of the government. And if there is no review or accountability for action of a branch of government, it is unconstitutional, a concept expressed in the limitation of federal court power to cases and controversies. It is true that judges are elected in this state, and therefore accountable to a degree, but it is difficult for the public to hold a judge accountable for her or his decisions, as opposed to a legislator.

It may be that Chief Justice Guy believes the court is suited for righting wrongs to individuals, either by government or by industry. Again this is not the case. Courts always see the injuries of an individual, ably presented by a lawyer, but they do not see the competing public interests that play a role in setting public policy. They do not see this because tort cases do not have lobbyists to present the public interests, as the legislature does. All they have is an injured and sympathetic party and a lawyer for some economic entity who is not qualified or even authorized to present the public interests involved in a panoply of health, safety and economic issues. A good example would be the issue of salting roads, where a legislature can make decisions based on lobbying by motorists, cities, road safety equipment manufacturers, land owners and everyone else. Courts do not receive this information and should not decide these policy issues.

Chief Justice Guy also praises the courts as without political agendas and without partiality. The Washington Supreme Court has a political agenda. The court has made it an ethical “offense” to “discriminate” on the basis of sexual or marital status. Some object to the sexual or marital status of others, but the Supreme Court threatens to disbar lawyers who dare to express or act on beliefs contrary to the court’s orthodoxy. As another example, the court has done its best to assist in funding Columbia Legal Services, claiming to act in the name of justice. In fact the court assists a highly partisan law firm whose positions almost always echo those of the Democratic Party.
Courts have a role in society: they should focus on ending disputes and deciding cases which involve real constitutional rights, such as the legality of searches and seizures. Beyond that, the people should rule.
 
Roger Ley, Seattle

Interpreting how the people should rule

Editor:
Our editor Lindsay Thompson had interesting comments on how governing body retreats are run in the April 2005 Bar News (One or two steps forward, then, maybe, another). The process has indeed led to significant value, yet it does have its shortcomings. Taking his column as true and as a cue to focus not on strengths but shortcomings, I note that it’s hard for those who work full time salaried positions in an area like bar leadership to trust those who are only part-time, because the part-timers are so often wrong and uninformed, but nevertheless pepper that naiveté with brilliance and innovation that can be valuable if harnessed.

But as far as insuring the short life and quick death of process inputs goes, I perhaps delusionally hoped he would allude to the long tradition of mystifying the intent of voters at elections and then discarding the inputs of the electorate, a subject that recently has become near and dear to my heart (as well as my attorney Randy Gordon’s heart). See lawsuit, study, etc. at www.votersunite.org (April 7 lawsuit).

If the people indeed rule this country and, as Article I, Section I of the Washington State Constitution says “all political power originates in the people,” and we also have elections set up for the transfer or withdrawal of that original power, why is the intent of the people something to be interpreted, at best, by soothsaying pollsters after gazing into the equivalent crystal balls? Has the science of measuring voters’ intent progressed so little?

To respect input implies a challenging process of separating wheat from chaff while still being aware that chaff may not be chaff, necessarily. Thus, a core element of leadership should be defined as ‘the reconciliation of the followers, the dissenters and the apathetic, with due regard for the inputs of each, in order to best serve the mission at hand.’ But when it comes to elections, though the government is obliged to serve the public and measure their intent at elections, mostly what we have is attacks upon voters and the negligence of officials, rather than an honest discussion about how one measures intent and then publishes that intent so that the government may be thus formed (through representation) and more importantly, informed.

Thompson, while typically hailing from the right (wrong) side of the political tracks, has hit upon a primary problem with governance as presently practiced: It has become a series of questions of the day, many of them largely for spectacle, upon which people may have only an attitude read or heard on the subject, but rarely is there a true attempt to assess the intent of those who are nominally ‘served’ and certainly not to consider at length any opinion which is highly developed and considered. And even for those who try to do a ‘needs assessment,’ it once again suffers from the shapings, limitations and biases of the assessor, only to collect dust on a shelf. Still, even with the value of the needs assessment and other tools before us, no real attempt is made to assemble the various pieces into a brilliant collage, for to do so is to risk being deemed inconsistent or worse by those who hold their own attitudes sacred, which is to say, all of us.

Meanwhile, somewhere along the way, brilliance, innovation and progress were all told they had exceeded their time limits. Meeting adjourned.

Paul Lehto, Everett