October 2007

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.

Roll on, Columbia

I write to clarify a couple of issues in response to Roger Ley's two-part letter to the editor in your August and September issues regarding amended Civil Rule 23.

Any funds collected under CR 23 would be distributed by the Legal Foundation of Washington, a nonprofit corporation, to over 30 legal aid programs statewide. The Legal Foundation is overseen by the Supreme Court and disburses funds pursuant to guidelines adopted by its board for the purpose of ensuring meaningful access to the justice system for low-income people. Legal Foundation grantees provide legal help to people facing such urgent civil legal problems as domestic violence, wrongful eviction, or improper denial of health benefits. All of the Legal Foundation's grantees accept clients based solely on need — none have any political affiliation.

Columbia Legal Services, one of the Legal Foundation's grantees, represents low-income clients in alternative dispute resolution, in court, and in the legislative arena when warranted by the clients' legal problems. The IRS permits nonprofit organizations to do a limited amount of legislative representation and the Legal Foundation monitors Columbia Legal Services to ensure that they are in compliance with IRS rules.

The Washington Supreme Court properly amended Civil Rule 23 pursuant to its constitutionally vested power to regulate judicial practice and procedure. As required, the Court solicited public input on the amendment during the public comment period. Receiving no objections and considerable support, the Court adopted the amendment, which was endorsed by the Washington State Bar Association, the Superior Court Judges Association, the Washington State Trial Lawyers, and the Washington Defense Trial Lawyers.

Caitlin Davis Carlson, Executive Director, Legal Foundation of Washington, Seattle

Three-part test?

I wish to raise a question concerning the article entitled "The 'Who Is the Client?' Question Revisited" ["Ethics and the Law," August 2007 Bar News].

My question deals with the two-part test for determining whether an attorney-client relationship exists, based on a ruling in Bohn v. Cody, 119 Wn2d 357, 832 P.2d 71 (1992), described in that article as "the leading case on that point."

Neither of the two cited elements required for an attorney-client relationship to exist deals with the issue of whether the services requested and/or performed amount to the practice of law as defined by case law in Washington. The established definition is far from clear and if the services requested and /or performed do not fit clearly within the established definition, there is a legitimate issue as to whether or not the person on the attorney side of the relationship was practicing law. If no law was practiced, how can there be an attorney-client relationship?

If the two elements represented in that article are in fact all that our Supreme Court requires for an attorney-client relationship to exist in Washington, then I submit that the Supreme Court has overlooked its own rulings on the definition of the practice of law, as a necessary third element. I invite comments.

Eric L. Clauson, Edmonds

Secret handshake?

How many of you know of the following? I say these are the best-kept secrets anywhere buried deep in the Bylaws or in the practices of the Bar. 1) All judges of our court system, including administrative judges, municipal court judges, commissioners, magistrates, and tribal judges are exempt from paying Bar membership fees (Bylaw II (A)(b)(3)); 2) All judges are exempt from the application of the Rules of Professional Conduct, not because the RPC's say so or the ELC's say so, but because the Bar deems it to be such and, worse, keeps no records of such.

There is no authority for either of the above in statute.

I submit the real reason for both of these is that there is a "sweetheart" relationship existing between the Bar officials and the judges hoping that the judges will rule for the Bar in any matter brought before them where the Bar is a party or personally when an official is a party. Can you imagine what would happen if a golf club exempted a judge from paying fees? Or, a lawyer dipped into his trust account before becoming a judge and exempt from this conduct while serving as a judge? Is this not a form of corruption? Since 1937 only one lawyer facing Bar discipline has been exonerated by the Supreme Court.

We lawyers in the pit out here are being asked again to "eat cake" when "Marie" and her tribe have all the cake they need.

J. Byron Holcomb, Bainbridge Island