June 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 the editor at tradelaw@hotmail.com. 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.

Road Ice Article Not a Lobbying Piece

While I appreciate a dialogue on cutting-edge legal issues — including whether or not our courts ought to recognize that our municipalities are actively using anti-icers on our roadways, and holding them to that standard of care — Mr. Cooley’s letter to the editor in the April issue of Bar News (“Road ice article needs to be taken with a grain of salt”) represented that my reason for publishing the history of the use of anti-icers on our roadways was to influence the Washington State Supreme Court on a pending petition for review. No such petition for review was ever filed in any case I have handled, and none is pending in the Supreme Court.

The sole purpose of my article was to provide a background for bench and bar into the history of the use of anti-icers over the course of the past several years, rendering our antiquated “reactive” sanding cases now irrelevant. My intent was also to discredit the blind reliance upon stare decisis in ignoring the current use of anti-icers in setting the proper standard of care. In fact, contrary to Mr. Cooley’s letter, virtually every municipality in the state of Washington — including the state itself — uses anti-icers on our roadways. Mr. Cooley can argue “salt is bad.” Explain that to all of the public works departments across the state who are using it. The issue isn’t whether anti-icers should be used — they are being used throughout the winter months throughout the state — but rather whether our courts should recognize anti-icers as an essential element of our municipalities’ winter road maintenance programs, and therefore the standard of care in cases where roads have been allowed to become icy due to a municipality’s neglect.

For many years we pro-environment Washingtonians fought against salt. We didn’t make the decision to use it — our municipalities did. That debate is long over.

It is disingenuous at best for a municipality to argue that it should be held to a reactive standard of care, responding with sand only after an ice-caused fatal accident, when in fact it actively uses anti-icers to prevent ice from forming on its roadways — if it happens to be paying attention.

Mr. Cooley correctly points out that Galileo’s scientific revelation that the Earth revolves around the Sun was not well received at the time. But, as with the fact that anti-icers prevent ice from forming, it was true, wasn’t it?

Keith L. Kessler, Hoquiam

Ideas About Justice Leave Much to Be Desired

Reading David L. Evans’ letter in the March 2005 issue of Bar News made me want to vomit. While I recognize many people share his political/economic philosophy, it really has little relevance to the administration or the practice of law in our society.

By his measure only those who lifted themselves up from poor circumstances or who were born with substantial wealth are entitled access to our courts to resolve their disputes. It’s sort of an “if you can’t afford it you can’t have it” attitude that represents a political/economic philosophy but does not equate to justice.

But Evans’ view is not what justice is. While I believe the concept of justice is inherent in the Constitution, even if I am wrong about the place of justice within the Constitution, I believe that not every principle worthy of pursuing within our legal system must have its genesis in the Constitution.

The 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. Our legal system dating back to early English courts has recognized that fairness is integral to administration of the law. Principles of equity as evidenced in the creation of courts of equity arose from the recognition that administration of justice required the idea of fairness as opposed to strictly formulated rules of common law. The very definition of equity includes that recognition. Black’s Law Dictionary 484 (5th ed. 1979).

Black’s defines justice as: “proper administration of laws. In jurisprudence, the constant and perpetual disposition of legal matters or disputes to render every man his due.” 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. It is what we were taught while in law school. Unfortunately, David Evans has either never heard, never learned or has forgotten that.

Yes, justice demands equal access to justice. That’s what President Ron Ward was saying in his January column. Its only connection to poverty and/or welfare recipients is the fact that circumstances, whether self-imposed or not, leave some people without the financial means to pay for someone (a lawyer) to help them negotiate the legal system.

I am certain that is why our State Supreme Court adopted RPC 6.1 that says: “Every lawyer has a professional responsibility to assist in the provision of legal services to those unable to pay.”

That’s not a new idea. It’s not revolutionary. It’s just right.

Lewis H. Zieske Jr., Chehalis

Reminders on Professionalism Are Always Timely

I have never previously responded to the author of an article in the Bar News. However, after reading Ron Ward’s well-written article in the February issue, I decided that I wanted to congratulate him and, in doing so, to personally vent about the subject matter.

I just want to thank Ron for addressing a subject that is extremely important, but rarely discussed. I have been dismayed with the lack of professionalism, ethics and fair play exhibited by many of the attorneys that I have had to deal with over the years. I hope that articles like Ron’s will cause our profession to seriously consider these issues and recognize their potential ramifications.

Like President Ward, I feel that being a lawyer holds you to a higher standard of conduct in both the community and your business practices. However, that is not what the public, nor I, observe in the actions of many lawyers. Several years ago, I became so disillusioned with the antics of the pit bulls that I seriously considered quitting the practice of law. I was frustrated at being taken advantage of when I played by the rules and freely extended professional courtesies (such as agreeing to waive deadlines, etc.).

I also did/do not like being viewed by the general public as someone who would do anything, no matter how morally corrupt, simply to make a buck. In the eyes of many, I am guilty merely by association. Even my mother (in Wisconsin) had to defend me because of my profession. She told me that a 90-year-old lady in her church had asked her what I did and, after hearing my mother’s reply, said incredulously, “How could that nice boy have become a lawyer?” I think that my mother went to her grave embarrassed about that.

I am still practicing law and hoping that, by setting a good example, maybe some of the public will realize that not all lawyers are like the pit bulls that get so much of the publicity. There are many of us that are not driven by greed or the need to prove our self-worth by bringing our adversaries to their knees. I still want to believe that this is a noble profession that is helping to make this world a better place to live in generally and for each of our clients. I just hope that we can keep the pit bulls from destroying our profession.

Mark C. Mostul, Seattle

Diversity Efforts Should Start Sooner

I read Ron Ward’s article on “Why Diversity?” in the April issue of Bar News. Under the section — “What Can We Do?” — a bullet point that I would add is the need to encourage young people of color to select the law as a profession. Secondary, elementary and middle school are good places to begin. Good grades in high school start to determine what college you get admitted to, and subsequently which (if any) law school you are admitted to. At Williams, Kastner & Gibbs we have long been committed to a diverse work place. It is a specific element of our Strategic Plan. We have had successes and failures along the way, but I do not believe that we have lacked intention. As we actively recruit attorneys of color I am sometimes seized with the notion that hiring an attorney away from another firm may add to our diversity, but at the same time it detracts from the firm who loses the person and in the end, the overall mix has not been changed. I think that one important source of advancing the goals of your article is on the “supply side.” As part of that strategy we participated in Junior Achievement this year and had young people shadowing our attorneys in a daylong orientation. My comments are not meant in any way to detract from any of the points Ron Ward made, but rather to add to the equation. I hope that my thoughts may be helpful. Thanks to Ron for writing the article and for listening to my ideas.

Bill Viall, Seattle

It’s All a Sham

I was extremely encouraged by the start of President Ward’s April 2005 Bar News column. “Diversity,” wrote President Ward, “aspires to the full enfranchisement, economic and otherwise, of all elements of the legal community and our society.” At last, I thought, a leader who sees diversity as something more than simply racial or gender number counting.

But my euphoria was brief. It quickly became clear that President Ward’s concept of diversity was only concerned with a very limited portion of the palate of physical attributes, principally race, color, and gender.

It is nice for President Ward to opine that “all segments of society have a right to representation by a profession that includes their peers.” But as I look around this profession, I see no representatives of the peer group of those without the intellectual ability to succeed in school and college. I see few representatives of the peer group of those disabled by the regular use of illegal drugs. I see few representatives of the peer group of white supremacists. I see few convicted felons. I even see few representatives of the quite sizeable peer group that hangs avidly on every word uttered by Rush Limbaugh.

Am I kidding? Only slightly. The reality is, folks, that the legal profession does not, and does not want to, give all segments of society representation by a profession that includes their peers. We insist on three years of law school (or four years of clerkship) and passage of the bar exam precisely because we do not want representatives of all segments of society in our august midst. We impose a “moral character and fitness” requirement on applicants for the bar exam precisely because we do not want representatives of certain segments of society to be allowed into our esteemed (don’t we wish) company.

As my father in law used to say, let’s cut the crapola. We do not want a diverse bar fully representing all segments of society. We are an elite group, and we try hard to make sure that we remain so. This may be a good thing for society. I’m not arguing here that we should be admitting those who lack the intellectual ability to do college work (though I have met some high school drop-outs with more common sense and moral integrity than some of the most educated of my peers), or who have been in and out of prison for years. But please, let’s not pretend that we want to be a body which includes peers from all segments of our society. Because the reality is that we most definitely don’t. And to say otherwise is simply not to tell the truth.

Lawyers are, Mr. Ward says, noted as creatures of logic. We should also be noted as creatures of truth. Shouldn’t we?

Christopher Hodgkin, Friday Harbor

Licensing Nonlawyers Is a Bad Idea

The Washington State Bar Association should reject most if not all of the efforts to permit non-lawyer “legal technicians” to become licensed and essentially practice law as is being proposed.

Historically, non-lawyers who have advised family law clients have done so with devastating negative effects.  After the non-lawyer resolves their case, many parties later discover that they have unknowingly waived their rights to their portion of a six figure military retirement.  Others have found out months after their divorce is finalized that they have no enforceable visitation rights with their children.  In short, non-lawyer’s involvement in dissolution cases while photocopying, filling out and selling low cost forms has been an unmitigated disaster. 

Most family law attorneys and judges cringe when they first review an “uncontested” dissolution that has been prepared by a non-lawyer who has filled out some forms and filed the case in Lincoln County, which has permissive local rules.

I have found it is far more time consuming for the attorney and expensive for the client to try to fix the egregious errors committed by the “legal technicians” than simply hiring an attorney in the first place. 

Yet, often an error is committed that can never be remedied.  For example, military spouses’ failure to apply for a survivor benefit for a military pension within a year will cause it to be waived.  Failure to comply with this one federal rule may very likely subject the military spouse to a lifetime of poverty. 

Thus, despite the fact that family law uses forms, complex issues are raised regularly and identifying subtle yet important issues should not be delegated to the “legal technicians” any more than surgical procedures should be performed by a “medical technician” who took a health class.

Despite the great consumer need in the health care field, the medical community does not permit medical technicians to attempt to perform surgery. 

Yet, there is often more at stake from the client’s perspective in a family law case than in medical cases.  Will all of the assets be identified or only the assets the other party reveals?  Will the client have enforceable visitation rights?  Will the private or public pension be divided correctly or at all?  Will the client be able to stay in his or her house? Will the client be fully informed as to their rights before finalizing the divorce or will they be pressured to sign prepared documents in order to save legal fees? Attorneys have a difficult enough time dealing with these issues.  Non-lawyers have neither the skill, experience nor knowledge of the law to address these critical issues facing the client.  Nor do they often have the skills to identify when a complex issue is present.  They are not attorneys.

The fact that family law uses forms bears no relation whatsoever to the skill required to competently advise, represent, and yes, fill in forms for a family law client.

Instead of endangering additional family law clients with the incompetence of non-lawyer “legal technicians” the state bar should focus on improving attorney skills in serving clients more efficiently and competently.

Erik Bjornson, Tacoma