March 2007

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. 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. 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.

Hear, hear for public defense

Thank you for your series of articles (February 2007 Bar News) highlighting the importance of public defense and the continuing challenge of providing adequate funding for this function. Bob Boruchowitz’s article (“Right to Counsel Remains Threatened in Washington”) correctly concludes that even in our state, and despite improvements identified by other writers, robust public defense is non-existent in many of our counties. Funding is critical. Fair compensation and manageable caseloads attract dedicated and competent lawyers. Good lawyers leave clients feeling they have been treated fairly and with respect, increasing the likelihood that they will not return to the criminal justice system. Beyond this social good, as Tom McBrides’s article (“Maintaining a Healthy Criminal Justice System”) notes, prosecutors believe good lawyers bring practical, economic benefits to the criminal justice system.

Clients confident in the advice of appointed counsel will settle cases that should be settled, saving the time and expense of needless trials. While we do not suffer the mischief of the Alabama prosecutors mentioned in Rob McKenna’s article (“The State’s Role in Defining the Constitutional Right to Counsel in Gideon”), prosecutors who fought creation of a public defense system by claiming defendants are better off without lawyers, the idea of public funding for poor criminals remains politically unpopular. We can turn this tide by persuading legislators and the public that good public defense promotes societal values, public safety and cost efficiencies. The education provided by your articles is a start.

Tom Hillier, Seattle

Second the motion

Excellent articles regarding the status of public defense in the State of Washington. I spent the better part of a decade representing juveniles in criminal court and at times it felt like I was pounding hot sand with my head. At the time, I was an inexperienced criminal defense attorney. The firm that hired me controlled the public defender contract in my modestly-sized county in Eastern Washington and they expected me to work half-time in public defense and half-time in civil litigation. As it turned out, my more than full-time job in indigent defense included representing parents in dependency proceedings, approximately half of the juvenile offenders, all of the gravely disabled persons in commitment hearings, and parents in child support contempt proceedings. Fortunately, I was earning $29,000 per year without benefits or insurance. Well, we’ve come a long way since then. Under the leadership of longtime public defender Keith Howard, and with the support of our county commissioners, our county has opened a public defense office. The office is well-funded and staffed with committed public defenders that receive a living wage for their hard work. Hopefully, this is a sign of better things to come. Although I am no longer a public defender I still fully believe in the adage that public defense is the last cornerstone of the Constitution.

Tomas Caballero, Wenatchee

Rules, rules, rules

Ellen Conedera Dial writes in the January 2007 Bar News that new ethics rules which prescribe mandatory disclosure by lawyers of confidential information “to prevent reasonably certain death or substantial bodily harm” and which allow “discretionary” disclosure of confidences, to remedy past acts that have caused substantial harm to the financial interest of another because of the client’s commission of a fraud or crime. The lawyer may also disclose confidential information if the client’s crime or fraud might in the future cause or increase financial harm to another. The lawyer is either required to inform on a client or has the option to inform when it might be in the lawyer’s interest to be an informant in order to protect the lawyer from a bar proceeding and a lawsuit. The client has no privilege or right whatsoever, must hope the lawyer will not inform on him or her. If somehow the lawyer thinks someone might think the client might have committed a crime or fraud that might harm someone, then the lawyer is at risk, and so is the client. There are crimes everywhere, federal and state, in land use, employment, occupational health and safety, in communicating things, in aiding others, in supplying information to the government. The area of potential disclosure for the client is broad. Fraud also is a vague area. The rule may destroy the confidence of a client in a lawyer and the confidence of a lawyer in the client, and it will certainly make clients circumspect about confiding in their own lawyer.

To understand why these rules are so pernicious, it is helpful to understand what lawyers and courts do. Lawyers and courts take property and freedom from people. The only defense the target has is the defense lawyer. It is one lawyer against all the power of the courts, often all the power of the executive branch, and all the skill of a lawyer who wants the property of the defendant. A civil or criminal defendant is entitled to a lawyer because due process means that a court cannot adjudicate a claim if the defendant does not have a voice which is loyal and informed and can tell the client’s story. And if that client is afraid to confide in the lawyer, for fear of being informed on, and the lawyer is afraid to use confidences for the client’s benefit, for fear of being sued and disbarred, there is no lawyer. A “lawyer” who cannot hear is insufficient to meet due process standards.

The rule is unconstitutional and should be abandoned.

Roger B. Ley, Seattle

Don’t pen me in

I would like to sincerely apologize to the editors of the Bar News for any difficulties my November 2006 article (“Substantive Due Process and the Problem of Horse Sex”) has caused. I have never been personally responsible for creating a new low in legal journalism before, and, while I suspect that my detractors may be granting me a little too much credit as a force for evil in the world, I would be genuinely upset to learn that I had lost subscriptions for the magazine. To my detractors, I fully admit to all charges of questionable taste, underdeveloped metaphors, and imprecision of language. However, I also believe that some people have been taking my article far too seriously.

My goal in writing this piece was simply to puzzle out the difficulties in turning morals legislation into a constitutional question. In my reading about the issue, it seemed to me that most people confuse the question of whether morals legislation should be constitutionally limited with the question of whether the conduct being legislated is actually moral or immoral. I chose bestiality as a topic precisely because the conduct is so universally considered to be immoral. If limits on morals legislation can be defended there, they can be defended anywhere. If there cannot be a liberty interest in bestiality, then perhaps liberty interests themselves may be universally called into question. The point is that, if we are intellectually honest, the analysis shouldn’t change based on the level at which a particular conduct is deemed to be socially acceptable.

My article may have implied that Washington’s bestiality law is redundant and of questionable legislative value. I deny that I have attempted to encourage anyone to turn to a life of barnyard debauchery.

Natalie Daniels, Seattle

When a meth lab isn’t a meth lab

I read with interest the article entitled “Meth Labs: An Environmental Bad Dream For Property Owners, Tenants, and Neighbors” by Michael A. Nesteroff (January 2007 Bar News). While it does seem evident that the use and manufacture of methamphetamine in the state of Washington is on the rise, I’d like to present another side to this story, one that many defense attorneys have already discovered.

Mr. Nesteroff accurately states that under Washington law, acceptable standards of contamination are 0.1 micrograms per 100 square centimeters. Levels discovered over the 0.1 standard require remediation. The State Department of Health (DOH) enters the home, apartment, hotel room or other structure suspected of methamphetamine manufacture and takes random samples using an alcohol soaked 4" x 4" absorbent pad. The samples are sent to a chemist who determines methamphetamine levels within a 70% or more “QA” (Quality Assurance). The tests are specific. If the testing indicates the presence of meth, it cannot be confused with other chemicals, drugs, or contaminants. However, in every case where the levels exceed 0.1 per 100 square centimeters, the property is labeled “Clandestine Drug Lab” by the DOH and cleanup is ordered. Cleanup can involve removal and replacement of drywall, insulation, carpeting, fixtures and more. The property owner then faces the costs of cleanup that can run many thousands of dollars.

Further, the address of the property is listed on the Health Department’s website: http://www.doh.wa.gov/ehp/ts/CDL. For example, lists of “known drug labs” by county can be found at: http://www.tpchd.org/files/library/1d1895cc5d27ad28.pdf. Even maps of “known drug labs” are available online by county, and “unfit for use” signs are posted on the structure and recorded with the county, all thanks to the Washington State Department of Health. However, the numbers, addresses and maps are skewed.

As if the costs of cleanup were not enough of a headache for the property owner, the “Scarlet Letter” of the DOH lists and maps, and county “unfit for use” filings reduces the property’s value, and hence property taxes for the county. This would all seem rational if it weren’t for the problem of defining the existence of a “Clandestine Drug Lab.”

Suppose, for example, that the DOH samples were swiped in properties where no other evidence of the existence of a drug lab is found. That doesn’t matter. If the DOH samples show any levels of methamphetamine over 0.1, the property is a “Clandestine Drug Lab!” Does low levels of methamphetamine over 0.1 always indicate a Clandestine Drug Lab? To be certain, I checked with a DOH certified forensic laboratory senior forensic chemist. The answer is: “It is impossible to tell whether the sample shows the existence of a drug lab, or whether it simply shows drug use in the property.”

So, without any other evidence, a State agency is granted the power to convict non-criminals (property owners) and list relatively innocent residences as “Clandestine Drug Labs” on the internet for all to see. Do you, property owner, always know what goes on in your teenager’s bedroom or in a guest bath? If not, don’t call the Washington State Department of Health.

How the Washington State Department of Health procedures have thus far escaped constitutional scrutiny is a mystery. A second look at the applicable laws and regulations in concert with the constitution (and common sense) appears in order for the law’s initial intent to succeed.

Debra Chambers Buchanan, Tacoma

Accept no substitutes

It is encouraging to see the near universal opposition to the “Legal Technician” proposal by the practice groups who have analyzed it as well as WSTLA and the Board of Governors.

The proposal would have allowed non-lawyers to practice much of the law that attorneys do now with as little as two years of community college education while creating a parallel licensing system for the non-lawyer “legal technicians,” funded by $700,000 in WSBA bar dues.

The WSBA Family [Law] Section has explained to the BOG that the measure would fail to provide “competent and qualified legal assistance” and would fail to fulfill the legal need “in any meaningful way.”

Consequently, on November 30, 2006, the Board members of Washington State Trial Lawyers Board voted unanimously against the proposal (34-0) urging “the WSBA to take a strong stand against the legal technician program and pilot project.”

In their subsequent letter, WSTLA cited 7 reasons they opposed the technician proposal including “the difficulty of assuring the delivery of competent legal services,” and the likelihood that the technician would be no less expensive than a “young or less qualified attorney,” and that there would be no assurance that “legal technicians will actually provide services to the poor.”

According to a member of the WSBA Board of Governors, WSBA members were 95-1 against the proposal.

The Practice of Law Board should drop the technician proposal and instead take WSTLA’s advice by assisting low income residents to obtain competent legal services through “GAAP program and existing legal services.”

Erik Bjornson, Tacoma