August 2008

Bar News welcomes letters from readers. We do not run letters that have been printed in, or are pending before, other legal publications with overlapping readership. Letters should be no more than 250 words in length, and e-mailed to letterstotheeditor@wsba.org or mailed to: WSBA, Attn. Letters to the Editor, 1325 Fourth Ave., Ste. 600, Seattle, WA 98101-2539. Bar News reserves the right to edit letters. Bar News does not print anonymous letters, or more than one submission per month from the same contributor.

Court has authority over Bar

In the July issue of Bar News, Roger Ley states his opinion that “the Washington Supreme Court does not have authority to regulate the legal industry or set policy concerning the practice of law.” However, that is contrary to holdings in a long line of judicial opinions in Washington and elsewhere. In Hagan v. Kassler Escrow, Inc, 96 Wn.2d 443 (1981), the Supreme Court stated:

It is a well established principle that one of the inherent powers of the judiciary is the power to regulate the practice of law. In re Bruen, 102 Wash. 472 (1918). See also Graham v. Washington State Bar Ass’n, 86 Wn.2d 624 (1976); State v. Cook, 84 Wn.2d 342 (1974); In re Schatz, 80 Wn.2d 604 (1972); State ex rel. Laughlin v. Washington State Bar Ass’n, 26 Wn.2d 914 (1947); In re Levy, 23 Wn.2d 607 (1945). Other jurisdictions are in accord. See, e.g., In re Kaufman, 69 Idaho 297, 302-03, 206 P.2d 528 (1949); Public Serv. Comm’n v. Hahn Transp., Inc., 253 Md. 571, 253 A.2d 845 (1969); In re Patton, 86 N.M. 52, 54, 519 P.2d 288 (1974); State ex rel. State Bar v. Bonded Collections, Inc., 36 Wis. 2d 643, 649, 154 N.W.2d 250 (1967). . . . regulation of the practice of law and “‘the power to make the necessary rules and regulations governing the bar was intended to be vested exclusively in the supreme court, free from the dangers of encroachment either by the legislative or executive branches.’” 86 Wn.2d at 633. “The unlawful practice of law by laymen is a judicial matter addressed solely to the courts.” [WSBA V.] Washington Ass’n of Realtors, [41 Wn.2d 697] at 707.

Robert D. Welden, WSBA General Counsel

Intentional endorsement?

I am not particularly concerned about the outcome of the coming gubernatorial election. I am very concerned about the Christine Gregoire interview by the President of the Association in its June issue. The timing and very prominent location of the article in the magazine are, in my view, a clearly intended political statement. The Association is a mandatory organization and as such, should be impartial and neutral on contested political campaigns. The article is a clear violation of that principle. The members are entitled to an apology.

Fred R. Butterworth, Seattle

WSBA President Stan Bastian responds: The decision to interview Governor Gregoire was mine and was not related to her re-election campaign. I had intended to publish it a few months ago, but other matters took priority. This year, I devoted several of my columns to interviews of lawyers in this state who are making significant contributions to both public service and the legal profession. Readers may recall that my interviews of John McKay and Gonzaga Law School Dean Earl Martin were published in previous columns. I am proud of my interview with Governor Gregoire and hope that members found it interesting.

Legal technician proposal feedback

I submit that those opposed to allowing family law legal technicians badly misunderstand the proper aspirations of attorneys in our society. The practice of law has always been a business, but should not aspire to be a business. Lawyers are distrusted in our society not because they advocate for controversial positions or represent unpopular clients, but because they all too often create the impression that they are financially self-interested.

The Bar should be thrilled to have an opportunity like this to communicate to the general public that it’s willing to turn over to paraprofessionals as much of the “rote” work of the law business as possible. The “scary” scenarios and supposed risks conjured by the opponents are all manageable. I mean, come on.

Pakistani lawyers beaten in the streets for protesting the sacking of judges; American lawyers fighting racism as Freedom Riders in the 1960s, standing up to McCarthyism in the 1950s, facing down powerful business interests in the 19th century to create the foundations of our modern tort law system. Why do some of us forget what they stood for — and what some of them died for — when an issue like this comes up? We should all be pounding on the table about the urgency of making routine legal services affordable. Our unequal “justice” system is an indictment of us. How about a little less commerce and a little more magnanimity?

If the Board of Governors comes out against this, it will certainly not speak for me.

Kenneth R. Scearce, Seattle

Rather than instituting legal technicians, how about the alternative approach of the Bar using all the data to challenge the rules and regulations which preclude needy people from qualifying for free legal services? Or expanding the role of paralegals? These seem better alternatives to me than creating a further caste system in the legal profession. Those of you working in some of the large Seattle firms know what I mean.
 
Emmanuel P. Tangas, Seattle

I am opposed to the limited practice of law proposal, and Bar News does a disservice to reasoned discourse when the question is characterized as “Helpful or Harmful.” Reasonable minds can differ, and to say that legal technicians are harmful implies opponents to this proposal find something bad in the concept or the technicians. The bias of the editorial board is evidenced by this title.

Using Arizona as an example is interesting but not helpful. Arizona’s forms are much simpler than Washington’s forms and can be filled out on-line (see http://www.sc.pima.gov/?tabid=230 for one county’s example, where a check list is provided for the pro se litigant), unlike the Office of the Administrator of the Courts website which doesn’t allow filling out and printing from its website. None of the pattern form responses mention jurisdictional challenges. Will the legal technician raise the issue, draft a response onto the form? Is drafting a response practicing law? If the technician doesn’t raise the issue, what consequence for the person who lost that defense? See the proposed rule 1 of the Johnson and Heller article at page 19 of July 2008 Bar News. Isn’t jurisdiction a relevant fact? Will the bar be paying for the damages?

An interesting statistic offered by the Bender and Bastine article is that of litigants who did not receive assistance by attorneys or court facilitators, 43 percent obtained help from friends and relatives, 16 percent from the Internet, and 29 percent from nowhere. If these litigants didn’t use a free court facilitator, why would they pay for any help? Simplify the pattern forms, do the technical work that would allow litigants to fill out the forms and print them on-line, and if the Bar Association has money burning a hole in its pocket, let’s spend it on Legal Aid before we change the practice of law in Washington.
 
Jane Bremner Risley, Asotin