March 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 must be 250 words in length or less, 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.

TARRTF and feathered?

Due to the misdeeds of a few bad apples who took money from clients and ran off, or inconsiderately upped and died before the work was done, the RPCs on retainers are being revised (February 2008  Bar News). TARRTF apparently stands for: Too bad, Attorneys are Rarely Responsible enough to be Trusted with Funds, and convened under the "Micromanagement of Lawyers Campaign" by the Board of Governors (BOG); Motto: "How can we BOG down overworked attorneys this week?"

The proposed rules are inherently illogical. You can charge an "availability retainer" and do nothing, but you can't get paid first for hourly fees. I find it highly demeaning and insulting to be told that I am too dishonest or incompetent to accept advance fees. In 20 years of practice I have never hesitated to refund unused fees. Thanks, BOG, for confirming the public's worst suspicions about lawyers.

I will have to raise my rates to cover the increased administrative costs associated with these convoluted rules. Thanks, BOG, for forcing me to take more time away from my clients so I can stay out of trouble with the trust account police.

By the way, now that the problem has been solved, will the Bar stop charging us that $15 annual assessment to cover the misdeeds of the bad apples?

An article-length version of this letter, including a mock schedule of flat fees in family law cases, can be found at my website www.RealFamilyLaw.com under "Real Law Practice."

Lisa Scott, Bellevue

Briefly

Now that the Supreme Court, by a 7–2 majority in King v. King, has followed other states and determined there is no constitutional right to a lawyer at taxpayers' expense in a dissolution proceeding, maybe the Bar Association will think twice before again committing our resources to filing an amicus brief on an issue unsupported by precedent and that the membership is divided on.

Charlie Blackman, Everett

WSBA President Stan Bastian responds: The WSBA has a long-standing commitment to issues involving access to justice and the unmet legal needs of persons with limited or moderate income. In King, WSBA members serving on the Amicus Brief Committee unanimously approved filing an amicus brief to discuss the vital role lawyers play in assuring all parties have meaningful access to the courts, and preserving limited judicial resources. The WSBA was well served by Monty Gray, who volunteered his time in drafting the WSBA brief. Mr. Gray practices at Davis, Wright, Tremaine LLP.

Objection to objection

Regarding the comments by Andy Hess in the January issue to comments by Jeanette Burrage in the December issue under the subject heading "Legislating morals," I do not know either of them, but I find Mr. Hess' comments unsupported by any substantial evidence, scientific or otherwise. Mr. Hess' questionable opinion is just as objectionable as he finds Ms. Burrage's "assumption" to be "baseless" on the subject of the morality of sexual orientation. His opinion that the American Medical Association, the American Psychiatric Association, and the American Psychological Association are "reputable" on this issue because in his words, they "consider sexual orientation to be a legitimate part of who one is — not a moral choice," and his last comment that sexual orientation (as compared to sex itself) "is a result of birth," suffer from apparent bias and lack of objective evaluation.

Some thoughtful information about the medical and psychological associations' approaches to this subject can be found in a well-researched and referenced book by Anne Hendershott, The Politics of Deviance, ©2002.

The WSBA should cease advocating and espousing questionable political and/or moral positions, period! Disguising such as appropriate legal discussion in a law journal in order to advocate such positions, especially when significant numbers of its members may not approve of such, is inappropriate, in my view. The WSBA should not spend its members' dues to promote, support, or publish any such positions and should limit its activities to testing, licensing, discipline, and legal education.

David Mickelson, Bellevue

But Supreme Court agrees 5–4 with "personal opinion" ...

I wish that you had not devoted so much space for Mr O'Ban's personal opinion piece on same-sex marriage (February 2008 Bar News). I believe that social policy should follow facts and science, not personal preferences. Throughout his article, Mr. O'Ban fobbed off "obiter dictum" as "precedence;" but even real precedence is valuable only when based on sound knowledge, not mythology, bigotry, and personal taste. For that reason, I find Attorney O'Ban's citation of "authority" against same-sex marriage to be of limited validity and inappropriate for inclusion in the Bar magazine.

First, Mr. O'Ban's citations are not based on scientific knowledge. According to the American Anthropological Association: "The results of more than a century of anthropological research on households, kinship relationships, and families, across cultures and through time, provide no support whatsoever for the view that either civilization or viable social orders depend upon marriage as an exclusively heterosexual institution."

Second, Mr. O'Ban's citations are based on the quaint concept of marriages that last a lifetime. I say "quaint" because we now live in a world of de facto serial monogamy. Being raised by biological parents does not assure a stable and humane home.

Society itself does not see marriages that last a lifetime as the sole source of a stable and humane environment for children. Since World War II, the West has seen a dramatic increase in divorce (once at six percent and now over 40 percent of first marriages), cohabitation without marriage, a growing unmarried population, children born outside of marriage (once five percent and now over 33 percent of births), and an increase in adultery (once eight percent to now over 40 percent).

Next time you seek a variety of opinions, remember to give those opinions their proper weight. Mr. O'Ban's citation of historical, but unscientific and non-fact-based, rationales, should not have been labeled so definitively as "Why Voters, State Governments, and the Courts Support the One Man/One Woman Marriage Limitation."

Kevin Myles, Portland, Oregon

Don't forget to reproduce

In his February article supporting the marriage status quo, Steven O'Ban asks "What is the purpose of civil marriage?" and responds "[To recognize] society's choice of the optimal environment in which to channel heterosexual sex for the sake of [resulting] children" or, as he puts it elsewhere, to "protect the biological relationship." I have enjoyed the privileged treatment our laws afford married people for nearly four decades, though my wife and I have no children. Mr. O'Ban's response, to me, reflects an extravagantly narrow view of civil marriage, with the many benefits and commitments that come with it.

In any case, Mr. O'Ban has little to say about how permitting same-sex couples to marry would discourage the relationships he wishes to protect. His response here is "It may or it may not, but it would certainly change the purpose and definition of marriage." It would change the definition of marriage, affording what a rapidly increasing number of our contemporaries view as equitable treatment to members of same-sex couples and to children they are raising. And the purposes of marriage are, I think most would agree, more various than Mr. O'Ban's formula suggests. They aren't all about sex or children.

I support the policy statement adopted by the King County Bar Association: "Two people of the same sex should have the right to marry under state law and to undertake the legal responsibilities and enjoy the legal protection associated with civil marriage under the law."

Peter Greenfield, Seattle

End marriage copyright

I read with dismay Steven O'Ban's half-a-loaf apologia of those dedicated to furthering homosexual discrimination. The piece only served to illustrate the fallacies of Mr. O'Ban's position, and no number of footnotes can dignify what he attempts. Given that his central argument seems to be about preserving "marriage" to those who want to reproduce, one might ask why there is no reference to the more than 33 percent of children now born to single (heterosexual) mothers and the nearly 20 percent of women who are childless into their 40s — despite marrying. I doubt homosexuals are at the root of this precipitous rejection of the marriage as "encouraging heterosexual procreation within marriage." In lieu of explaining how married homosexuals could possibly undermine his central tenet of marriage, Mr. O'Ban instead trots out the hoary specter of polygamy and the question begging revelation that no appellate court has held same-sex marriage to be a fundamental right. Mr. O'Ban, like legions before him determined to preserve the discriminatory status quo, offers the specious claim that homosexual discrimination is not part of the equation while never broaching the nettlesome fact that sexual orientation is intrinsic. Finally, Mr. O'Ban fails to distinguish between private religious rights and civil equal rights. Fortunately, one doesn't have to be a lawyer to appreciate that marriage is best served by the enduring commitments of those who choose it and not by the legal parsing of those who fear extending choice to all.

Bruce Clark, Seattle