May 2006

Letters to the Editor

Plenty of reasons to oppose legal technicians

Last year, many attorneys understandably strongly opposed the proposal to have nonlawyer "technicians" represent clients and give them legal advice. When opposing the rule last year, the Tacoma Pierce County Bar Family Law Section cited one of many reasons to oppose the proposal: "We believe that the WSBA's proposed rule moves in the wrong direction and will cause more harm than good. Law, like medicine, is a profession. The needy deserve the professional services of a lawyer. While the proposed rule will hold the legal technician to the standard of care of a lawyer, the legal technician is not a lawyer. It is a standard that would be impossible to meet."

Using an analogy, Washington state residents certainly need greater access to medical and dental care. Yet, dental hygienists are barred from filling cavities or even performing routine dental care. The regulatory scheme is designed to protect patients from harm and to have dentists be responsible for the care of the patient.

The Washington State Trial Lawyer Rule Committee expressed this concern as well: "Under the proposed version, it appears possible for legal technicians to represent persons in pre-litigation matters such as negotiations with insurance companies. We fear that under many circumstances, these more sophisticated entities will take unfair and inequitable advantage of persons that are only represented by legal technicians." No doubt the criminal, real estate, and other practice sections would have similar concerns.

By permitting the nonlawyers to select the forms for the client to use, such as a final property settlement document in a divorce, a release of liability form in a personal injury case, or a quit claim deed, the nonlawyers necessarily would have to give legal advice to clients. Yet, the nonlawyer technicians are not competent to recommend any of the dispositive documents.

The purported purpose of permitting nonlawyer technicians to practice law is to give "access to justice" for those who could not afford an attorney. A worthy goal. Yet the proposal makes no effort to focus or restrict the legal technicians to low income clients or to limit them to simple cases. Consequently, the nonlawyer technicians will have no incentive to try to represent low income clients whatsoever.

Furthermore, many clients who would have normally hired an attorney and received competent legal advice would be deceived into hiring a relatively unskilled nonlawyer who has never attended law school, taken the bar exam and likely never completed even an undergraduate degree.

Finally, the rule is not necessary. A great many nonlawyers already assist attorneys in the preparation of cases and assisting clients. Clients are charged the reasonable rate for the assistant in the office which is substantially lower than the attorney's hourly rate. Having the nonlawyers work unsupervised greatly lowers the competence of the work with no guarantee that the cost will be any lower to the client. Washington attorneys regularly represent low income clients and volunteer thousands of hours each year in providing competent and meaningful access to justice. Certainly there are ways to continue to increase this commitment. However, placing clients at risk by asking them to rely on the advice given by a nonlawyer technician is as reckless as having cavities drilled out by a "dental technician" who had never been to dental school.

Erik Bjornson, Tacoma

Hayne article a keeper

The article by Stephen Hayne "Demystifying Jury Selection" in your March issue was a most thoughtful discussion of voir dire and the jury selection process which should be of considerable benefit to all practitioners who try jury cases.

As a trial judge, all too often it appears to me that the voir dire process is used primarily as a preemptive tool to try some factual issue that the lawyers expect will prove troubling during presentation of their case. In other words, instead of being used to receive information from potential jurors, voir dire is used instead as a tool to impart information or to "educate" the panel about some factual issue. And since both sides use the process for the same purpose, objections are relatively infrequent. While I recognize that there certainly are times when the lawyers genuinely do need to evaluate the reaction of potential jurors to some particular aspect of their case, I must question whether this should be the primary focus of the jury selection process.

Perhaps all of us involved should try to think "outside the box" of our established methods in picking juries. It seems to me the typical jury selection process today is also hampered by our practice of not providing instructions on the law until the end of the case. As a litigant or a lawyer, I can think of few things of greater significance than how a juror reacts to the principles of law applicable to my case. And as a juror, I would certainly like to know what I will be deciding before I hear the evidence in order to assist me in knowing what to listen for. In a criminal case, defense attorneys understandably may want to explore how a potential juror will react if their client chooses not to testify. But in my experience, it may confuse the issue if the juror is asked if he or she will hold it against the non-testifying defendant unless they are also instructed on the Fifth Amendment right against self-incrimination. The question is not whether the juror logically thinks that the defendant should testify; the real question is whether the juror will follow the court's instruction that they cannot use the exercise of the defendant's Fifth Amendment right to infer guilt. In civil cases that I hear as bench trails, I cannot imagine how much more difficult it would be for me to decide the case if I was not made aware of the legal principles until the very end. Yet, that is exactly what we ask of juries in virtually every case.

In my experience, jurors almost invariably want to do the right thing, and a good voir dire process should be designed to expose those who have some other agenda. And to the extent that there is some legitimate need to "educate" jurors in the course of their selection, I think that process could be improved by orally instructing jury panels before voir dire, which would then allow a meaningful discussion of their attitudes and opinions regarding the legal principles they will be applying. Steve Hayne's thoughtful article should help us all "demystify" and maybe even reinvent this most important process.

Judge Bruce W. Hilyer, King County Superior Court, Seattle

More things it would be good to know

President Brooke Taylor's March column ("On the Road Again") was beautiful and moving. If he ever gives up his day job, he could write a great sequel to Travels with Charley. His unadorned writing captured the best of what we as lawyers bring to each other: our common interests, whether geographic (our county bars), or with a minority bar association (he mentioned the Latino/a Bar Association of Washington and the new Disabilities Bar Association), or with an area of practice.

His column reminded me that every year when I fill out the bar dues forms, I think that WSBA should ask for more demographic information. For the 2005 dues, I scribbled questions on the form, but no one responded. Here are some potential areas that are of interest to me (and perhaps all of us, as well as the public). The questions could be asked on a separate form and scored anonymously.

Ethnicity; Gross Income and Net income (include ranges that start realistically low, e.g., less than $30,000; 30,001 to 50,000; 50,001-75,000; etc.); Marital status (single, single but in significant relationship; married and living together; married and not living together; divorced, widowed); Disability: Do you have a disability? Does a close family member (spouse, partner, parent, child or step-child of any age, or other person for whom you provide emotional or financial support) have a disability?; What is your native language (if other than English)?; What language(s) other than English are you sufficiently proficient in that you have used it to communicate with clients (orally or in writing), with or without an interpreter?; What is the size of your law firm?; If you engage in the private practice of law, do you have malpractice insurance?; Do you think WSBA should prorate bar dues according to income?; Does your firm pay your bar dues?

I'm sure there are plenty of other questions lurking out there. The more that we as lawyers can do to let the public know that we are human beings, the better.

Carole Grayson, Seattle

Does Bar News have any standards?

Do you publish any letter that any member sends in? You must because I can think of no other reason that you would print the derogatory musings of Christopher Hodgkin.

In an age where the public image of lawyers is at an all time low according to our own Bar President, what good can come from ill-conceived public flagellation?

Now dissent is a good thing. And people should be encouraged to share divergent viewpoints. But the ramblings of Mr. Hodgkin have no purpose other than to demean the plaintiff's bar. The preamble to our RPCs states: "The continued existence of a free and democratic society depends upon recognition of the concept that justice is based upon the rule of law grounded in respect for the dignity of the individual and the capacity through reason for enlightened self government."

Mean spirited fantasies like "1-800-suethebastardstoday" and the "1863 case of Mediocre v. Stupid" do not advance any of the precepts contained in our governing rules. Erroneous fictions — such as suing for "bungled" prosecutions — may whip the populace into the desired frenzy. But as Mr. Hodgkin must surely know, prosecutors are immune from suit even under his pretend scenario.

Mr. Hodgkin has his right to free speech. But when Bar News agrees to print a letter to the editor, it should first make sure that it conforms to our own standards of professionalism.

Karen Koehler, Seattle

Editor's response: Bar News's policy has been to print all letters as space allows. We don't run anonymous ones, but that's about it. Some folks do write in more than others, but I'm not ready yet to start regulating that.

Things are improving

The University of Washington Moot Court Honor Board (MCHB) commends the University of Washington School of Law Gender Study Committee for examining any challenges women may face in legal education. The current MCHB membership wishes to respond to the gender study's analysis that a sexist environment may have pervaded MCHB from 2000 to 2003. Because none of the current MCHB members participated in the student organization during the time period in question, we reserve any comments about the perceived gender bias that may have occurred during that time. We are, however, pleased to announce that at the present time 20 out of the 35 MCHB members are women, 5 out of the 8 MCHB officers are women, and both the current MCHB President and the MCHB faculty advisor are women. In addition, every regional and national team MCHB has funded this year has included female competitors. We are confident that the balance these women have added to the teams has led to this year's success in regional and national competitions. The University of Washington MCHB team consisting of three female members received the Best Brief award at the Pepperdine Entertainment Law Competition. This year we also placed 2nd in the Northwest region and ranked as one of the top 8 teams in the country in the New York Bar Association Appellate Advocacy competition. The University of Washington MCHB team also placed 1st in the Southwest* region in the Phillip C. Jessup International Law Competition, with its members receiving the 1st and 2nd place speaker awards and the Best Memorial (Brief) award. The team competed in Washington, D.C. for the Jessup World Cup and was awarded the 9th place team brief and the 4th place applicant brief. In addition, two of our members received the 1st and 6th place speaker awards. We are proud of all of our members for their successes this year and we invite the Gender Study Committee to continue to re-evaluate its results in light of the increased female membership on MCHB.

*The University of Washington hosted this year's Phillip C. Jessup International Law Competition for the Northwest region. The host team in this competition is not permitted to compete at its own school and has the option to compete in any other region in the country. The University of Washington competitors chose to compete at the University of Texas at Austin.

Megan Crowhurst, president, University of Washington Moot Court Honor Board