April 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.

Truth in advertising

It was with dismay that I read the President’s Corner column in the February edition. While on the one hand our President indicates the WSBA took no position on R-67, on the other he “thanks” those who voted for it. I am not sure the two statements can be reconciled particularly if we consider his reason for the “thanks” being offered which is allegedly for “standing up to lawyer-bashing” which he described in the ads against the measure as “false.”

The advertising on both sides was misplaced. However, if the WSBA truly took no position on R-67, I would anticipate our President to comment that the advertisements in favor of R-67 were no less “false” to the extent they asserted R-67 would make bad faith “illegal” in Washington. Bad faith was already “illegal” in Washington. The only meaningful change in the law was to make punitive damages available and yet the ads in favor portrayed the initiative as constituting a substantive change, making illegal what was once legal. R-67 did no do that. It may be argued that increasing damages increases deterrence, but that is not what the ads said; the ads told otherwise unknowing voters R-67 was creating a new prohibition, making something newly “illegal.” That simply was not factually accurate.

You need not have been in favor or opposed to R-67 to see the advertisements of both sides were, at times, not entirely candid. I do not intend to say here that R-67 is bad or was not needed. It could be the best thing for our citizens since the CPA was adopted; time will tell. But, for our President to assert the WSBA takes no position on the measure while calling the ads against it “false” and ignoring the poetic license taken by the ads in favor, is not in keeping with the neutrality of the office. The WSBA, and therefore our President, must represent all members of the Bar; action by the Office of the President on par with February’s President’s Corner are inconsistent with that mission.

Daniel Bridges, Bellevue

WSBA President Stan Bastian responds: The WSBA and I did not take a position on R-67, but I chose to condemn the misleading lawyer-bashing ads which were published during the election campaign. The anti R-67 ads could not be ignored, and the intent of my February column was to safeguard the reputation of my colleagues, the vast majority of whom are professional and honorable. The office of WSBA President has many duties, but none is more important than defending the members of this profession when they are unfairly attacked.

Is tolerance discrimination?

Steven T. O’Ban says in the February 2008 Bar News that resistance to same-sex marriage isn’t “invidious discrimination” against gays and lesbians, because the trend is toward greater “tolerance.” Tolerance? If someone says he or she tolerates Blacks or Hispanics, would anyone doubt racial or ethnic bias is being expressed? Mr. O’Ban’s tolerance of gays and lesbians is no different.

He asserts the purpose of marriage is to provide a structure for procreation and child-rearing, and claims he is supported by history. Scholarly texts on the history of marriage, however, tell us marriage has had several purposes, including (for example) creating family and political alliances, perpetuating a male surname, and establishing boundaries for expressing sexual attraction.

Mr. O’Ban asserts children fare better when their biological parents raise them, thus suggesting that children raised by gays or lesbians will suffer. The evidence contradicts him. Dr. Gregory Herek (American Psychologist, 2006) reviewed the published research and concluded: “Empirical studies comparing children raised by sexual minority parents with those raised by otherwise comparable heterosexual parents have not found reliable disparities in mental health or social adjustment.” [Citations omitted].

Responding to all of Mr. O’Ban’s points is unnecessary, because ultimately it comes down to values, not evidence. Many of us accept gays and lesbians, and think it’s wrong to deny them equal rights. Others disapprove of gays and lesbians. From their standpoint, “tolerating” them is enough.

David A. Summers, Seattle

Flat fee redux

I oppose the proposed flat fee ethics rule (February 2008 Bar News), which would allow lawyers to charge flat fees for services, but then give the client the power to “take back” the flat fee and demand arbitration of the fee.

The ultimate purpose of a lawyer is to defend individuals from the government when it attempts to take away personal or economic freedom: life, liberty, and the pursuit of happiness. If the Washington State Bar is able to pass a law which guts the ability of a lawyer to collect a fee, then it has gone a long way to destroying the ability of lawyers to defend their clients.

The rule says that a lawyer must restore to a trust account any amounts that are reasonably disputed and then the lawyer, not the client, must take steps to “resolve the dispute.” In other words, the lawyer must put himself on trial to determine what part of the fee is disputed, and then must sue himself, or herself, in order to collect the fee. This means that many lawyers will not be able to use the fee because they might have trouble paying it back. No new house, no new car, no Corpus Juris Secundum. It probably means that most lawyers will consider the entire fee disputed, to be safe, and it means that it may take a long time to earn a fee, because clients, and their new contingent fee lawyers, can be difficult about bringing a fee dispute to trial. Fees will increase, lawyers and clients will be embittered against each other, and after a few publicized cases of lawyers losing their fees to the judgment of strangers on arbitration panels, the practice of defending the life, liberty, and property of our citizens will become unpopular.

Roger B. Ley, Astoria, Oregon

Online payment fees-ibility

The WSBA permits members to pay their Bar dues with a credit card through its website. However, members are not allowed to take the Keller deduction if they choose to pay their Bar dues in this manner (nor purchase the WSBA’s Resources directory). By failing to allow members to make the Keller deduction when Bar dues are paid over the Internet, a member is being forced to make a mandatory contribution that he or she may not agree with, which supports political or ideological activities that are not reasonably related to the regulation of the legal profession or improvement of the quality of legal services. Are members who pay through the website who wanted to take the Keller deduction given an opportunity for a refund? I believe that the failure to permit the Keller deduction on-line totally guts the spirit of the Keller decision, if it is not an outright violation of the terms of that decision. I frequently make Internet purchases at websites that allow me to deduct certain costs or fees. It would have been easy for the WSBA to provide for the Keller deduction, as well as for the purchase of the Resources directory through its website. Its failure to do so is more than a shame, it’s wrong. I realize that the WSBA is providing a service to its members by allowing bar dues to be paid through its website, but I do not understand why the WSBA has not provided for the Keller deduction to be taken.

Joel Green, Seattle

WSBA Director of Regulatory Services Jean McElroy responds: Members may use their Visa or MasterCard credit cards to pay their licensing fees in several ways: online through our website; by way of the paper licensing form that is mailed out to each member; or over the telephone. If the credit card payment is made via the paper form or the telephone, the member may deduct the Keller amount from the payment. Unfortunately, because our current online payment processes are not set up to handle the optional Keller deduction, a member paying licensing fees online using a credit card may not claim the deduction in that payment transaction. The WSBA is working on providing paperless (online) licensing that will include the option of claiming the Keller deduction for those opting for this payment method. For now, if a member pays online and wants take the Keller deduction, the member may contact the WSBA to request a refund for the deduction.

The Resources directories can be ordered online through the WSBA CLE online bookstore. We have also added a link on the licensing payment page that will take you to the bookstore page where you can place that order.