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Words of wisdom

The November 2008 issue of the Bar News “On Writing” proves the persuasive pen is mightier than the sword. What Winston Churchill said about dangling prepositions — “This is an effrontery up with which I will not put.” What Oliver Wendell Holmes said about brevity — “I’m sorry I wrote such a long letter, I didn’t have time to write a short one.” And, my all time favorite triple redundancy as seen on a Texas freeway billboard — “Absolutely totally naked girls.”

Clydia J. Cuykendall, Olympia

Claim dispute

I read with interest “Levying on the Opponent’s Claim Against Your Client,” (October 2008 Bar News) which discusses the tactic of executing on the opposing party’s lawsuit against one’s client as a means of enforcing a judgment. As the lawyer representing the plaintiff in the Gada Transportation case, I found a certain irony in the authors’ citation to Paglia v. Breskovich, 11 Wn. App. 142 (1974), the very case on which I relied, without success, in opposing the tactic described in the article. The authors appear to ignore two points made in Paglia which directly bear on the tactic. The first is the admonition to trial judges that “...the court ought to exercise its supervisory power over its own process to prevent one party from obtaining control and management of both ends of one lawsuit.” 11 Wn. App at 147. Indeed, the court described the result obtained by the tactic as “grossly inequitable.”

The second goes to the viability of Johnson v. Dahlquist, the rather hoary 1924 case which the authors also cite. The Paglia court, discussing United Pac. Ins. Co. v. Lundstrom, 77 Wn.2d 162 (1969), observed that it had difficulty understanding that case unless it was understood to overrule Johnson. 11 Wn. App. at 146. Thus, the authors’ comment that Johnson “remains intact today” seems ill-founded, and certainly is not supported by Paglia. In any event, Johnson involved a party’s attempt to acquire its own debt, not the judgment debtor’s lawsuit against the party. 130 Wash. at 33. The case did not address the inequitable result at issue in Paglia, and the ultimate outcome in Gada Transportation: “Into the hands of one party would fall the control and management of both ends of a lawsuit.”

The authors are also mistaken in their belief that the rule of Paglia applies only to lawyers, even though the bad actor in that case was a lawyer, because nothing in the decision limits the rule to the facts before the court. For that reason, the authors’ effort to distinguish their use of the disapproved tactic in Gada Transportation appears to protest too much: “...counsel for our clients did not levy on the plaintiff’s claim; rather, our clients did so.” I confess to lacking the hermeneutic skills necessary to grasp this distinction, vis-à-vis considerations of equity. I will, however, represent that all the defendants’ filings in Gada Transportation, in the trial court and in the Court of Appeals, were signed by the authors.

Jeffrey Cowan, Seattle

THE AUTHORS, JOHN H. CHUN AND DENISE L. ASHBAUGH, RESPOND: We, the authors, stand by our interpretation of the case law at issue. We acknowledge Mr. Cowan’s arguments, which were made to the trial and appellate courts and not accepted.

Discipline decision explained

Please ask the Washington State Disciplinary Board to respond in the matter of Jeb E. Burgess (September 2008 Bar News). You’ve published negative reactions in both the October and November issues. Every attorney I’ve discussed this with is amazed that he was not disbarred. The decision is so wrong; there must have been unusual extenuating circumstances of which we are not aware (although I am at a loss to think of what they could possibly be). We’d all appreciate a full explanation. Thanks.

Scott Smouse, Seattle

WSBA CHIEF DISCIPLINARY COUNSEL DOUGLAS J. ENDE RESPONDS: The September 2008 Disciplinary Notices published in the Washington State Bar News reported the three-year suspension from the practice of law of lawyer Jeb E. Burgess following his conviction of five gross misdemeanors arising from acts of indecent exposure directed toward girls between the ages of 11 and 13 in 2006.

Following Burgess’s conviction in 2007, the Bar Association charged him with violating the Rules of Professional Conduct. Specifically, he was charged with violating RPC 8.4(b) (prohibiting a lawyer from committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects) and RPC 8.4(i) (prohibiting a lawyer from committing any act involving moral turpitude or corruption, any unjustified act of assault, or other act which reflects a disregard for the rule of law).

Burgess admitted that his conduct violated RPC 8.4(i) but denied that his conduct violated RPC 8.4(b). The Bar Association tried the case before an independent hearing officer. The hearing officer conducted an evidentiary hearing on January 18, 2008. The hearing officer concluded that the Bar Association had proved violations of both RPC 8.4(b) and 8.4(i).

In his written decision filed March 4, 2008, the hearing officer applied the standards adopted by the Supreme Court for determining the appropriate sanctions in lawyer discipline cases, the American Bar Association’s Standards for Imposing Lawyer Sanctions, along with relevant recent precedent involving sanctions for criminal convictions, including In re Disciplinary Proceeding Against Day, 162 Wn.2d 527, 173 P.3d 915 (2007), and In Re Disciplinary Proceeding Against Perez-Pena, 161 Wn.2d 820, 168 P.3d 408 (2007). After considering the applicable law, the hearing officer concluded that the presumptive sanction for the misconduct in question was a suspension.

After weighing the aggravating circumstances (dishonest or selfish motive, pattern of misconduct, and vulnerability of victims), and the mitigating circumstances (absence of a prior disciplinary record), the hearing officer departed from the presumptive minimum six-month suspension, deciding that a substantial suspension was warranted. The hearing officer recommended imposition of a three-year suspension from the practice of law, the maximum suspension authorized by Washington’s Rules for Enforcement of Lawyer Conduct (ELC). The hearing officer further recommended that, as a condition of reinstatement to practice, Burgess undergo an independent examination by a licensed clinical psychologist or psychiatrist for the purpose of establishing that Burgess is currently fit to practice law. Upon reinstatement, Burgess is subject to two years of probation, including the condition that he comply with all treatment recommendations of the evaluating psychologist or psychiatrist.

As required by the ELC, the hearing officer’s decision was reviewed by the Disciplinary Board, an independent volunteer panel of 10 lawyers, and four non-lawyers. On June 11, 2008, the Disciplinary Board unanimously adopted the hearing officer’s recommendation. The Supreme Court subsequently reviewed the hearing officer’s decision and the Disciplinary Board’s order. The Court determined that the Disciplinary Board’s order should be entered and accordingly ordered that Burgess be suspended from the practice of law for three years, effective July 8, 2008.

For copies of the decision papers in this case, contact the clerk to the Disciplinary Board at 206-733-5926. The complete official files, to the extent they are public, can be reviewed by making an appointment during normal business hours with the Disciplinary Board staff at the number above.

More on marriage

I am informed that the WSBA Board of Governors has unanimously endorsed same-sex marriage. I profoundly disagree with that decision for a host of practical, political, and moral reasons. And while I believe that everyone who participates in our justice system should be treated with respect by the bar and by our courts, I do not believe that bar and its representatives should take positions on political and social issues. Did the Board of Governors also endorse presidential and gubernatorial candidates? I certainly hope they did not.

While I know that the individual members of the WSBA Board of Governors will have their own positions on issues, public policy, and candidates, I would not expect that they would attempt to speak for me. The bar is a professional organization which has compulsory membership requirements. Therefore, I do not have the luxury of resigning in protest over actions taken which I object to. On the other hand, I would have the luxury of resigning from the Seattle King County Bar, WSTLA, WACDL, or the ABA, if, as a member, I no longer wish to voluntarily associate with those entities.

The Board of Governors did a tremendous disservice to their fellow Christian, Mormon, Jewish, Muslim, Catholic, and Republican members who don’t support same-sex marriage. The fact that there was not a dissenting vote among the members of the Board of Governors suggests a lack of diversity on the Board, as well as the fact that the Bar is far ahead of the curve of public opinion. While many people may be open to the idea of civil unions, the majority of people in our state do not support same-sex marriage, especially outside of the Seattle-King County area.

If the Bar Association wishes to be an advocacy organization, then perhaps its membership would be better served if the State Department of Licensing took over its licensing and disciplinary functions. However, this seems to be an area where the Bar functions well. So, perhaps the Bar should focus on serving the public and its own membership, and avoid taking positions on social and political issues, which are out of step of public opinion, especially the issue of same-sex marriage.

Patrick D. McBurney Jr., Richland

I was disappointed to read the glowing report of the Board of Governors’ passage of the resolution supporting same-sex marriage. Nowhere does the report recognize the substantial opposition to the resolution coming from many members of the bar.

Instead of acknowledging the strong opposition to the Board’s position, the article includes only the apologia of President-Elect Mungia accompanying his vote. He mischaracterizes the opposition to this resolution as coming from WSBA members for whom the resolution “goes against their personal views of what is moral.” On the contrary; many of us who wrote to the Board of Governors in opposition to this resolution objected to the WSBA’s abandonment of the rights and needs of children who deserve the best chance to be brought up by their biological mother and father committed to each other for life. This is not a personal view of what is moral, but a differing view of the proper role of the bar association in addressing issues of public policy. The resolution was couched in the language of promoting “predictability,” but as the recent vote in California demonstrates, the only thing predictable from such actions is continuing legal and cultural chaos. The WSBA Governors abused their position as stewards of a compulsory bar to advance a “personal view of what is moral,” and I for one protest.

David K. DeWolf, Spokane

Our Board of Governors showed wisdom and courage when adopting a resolution supporting equal access for same-sex couples to civil marriage (November 2008 Bar News). As explained by Mark Johnson and Salvador Mungia, the Board was not only authorized to take this stand, but had a duty to do so.

Some members of the Bar may say they oppose the resolution on religious grounds. However, the resolution concerns only “civil” marriage, which has always been a secular institution in Washington. The resolution has no bearing on the solemnization of marriages within the context of a religious faith. Unfortunately, some may argue their religious or moral beliefs allow or even compel them to withhold rights from gays and lesbians in all areas of life, civil or otherwise. It is gratifying to know our leadership takes a different view.

Having sworn to uphold the rule of law, we cannot remain silent when faced with pernicious and wholly unjustified discrimination against gays and lesbians who merely want to enjoy the same benefits of marriage that are or can be enjoyed by the rest of us. I hope other Bar Associations follow our lead and adopt similar resolutions.

David A. Summers, Seattle

CORRECTION: In the October 2008 Bar News, it was stated that Leonard J. Feldman, one of the authors of “How to Write, Edit, and Review Persuasive Briefs,” is an attorney at Heller Ehrman LLP. He now works as a member of the appellate group at Stoel Rives LLP.