September 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 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. 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.

It’s fund-amental

The President’s alarm [August 2008 Bar News, “President’s Corner”] does not tell the whole story regarding the Client Security Fund [Lawyers’ Fund for Client Protection]. The Rules do not require revision. Fund payments are gifts, not entitlements. The Board of Governors, as [the fund’s] Trustees, have unfettered discretion to deny or limit any request. Moreover, the Rules intend special scrutiny where “payments of more than $25,000 be made to applicants regarding any one lawyer.” That provision may be interpreted to provide that the limit refers to any one applicant, rather than to “any one lawyer.” However, I expect that the Board of Governors, as Trustees for the Fund, will act in a manner consistent with the integrity of the Fund and with their duties as representatives of the lawyers funding the gifts, and limit the recovery of any claimant where the collective claims against a single lawyer would materially limit the ability of the Fund to respond to other claims.

There are mechanisms to deal with this situation. Other alternatives require consideration, such as insuring against a “catastrophic” loss incurred by a single lawyer. It is irresponsible for the President of the Trustees to propose a “special assessment” to deal with the claims that the Committee faces. Such a course is patently unfair and unpalatable.

In response to the question posed: “No, one bad apple should not spoil the whole bunch” — the defalcations by one lawyer resulting in claims that exceed the Fund balance should not spoil the integrity of the Fund and the benefits that it affords to the public.

Steven B. Tubbs, Vancouver, Washington

Not funny

I was surprised and disappointed by last month’s back page entry, “Will Litigate for Food.” [July 2008 Bar News, “The Bar Beat”] Although I am sure it is difficult to come up with amusing feature items every month, attempting to analogize the plight of a successful litigator in this economic downturn to a homeless person was in poor taste. The “humor,” I assume, was supposed to be found in the absurdity of seeing an attorney, of all people — a litigator, nonetheless — reduced to sleeping under the Alaskan Way viaduct or in a stairwell, drinking fortified wine, and worrying about where his next meal would come from. What better way to further perpetuate the stereotype of a money-hungry, Rolex-wearing, self-absorbed lawyer than to hold up for ridicule the very real living conditions that many in our society face every day. While I appreciate and share the need to laugh at the turn the economy is taking, let’s not do so at the expense of others, especially those whose worries are so much greater than the price of gasoline and lattes.

Elizabeth Leddy, Seattle

More on the legal technician proposal

All regulation of the market for legal services serves two purposes: guild protection and consumer protection. The legal technician program is no different. It is a verity that there is inadequate access to justice in family law — and in many other areas of “consumer” law — due to cost and complexity. But, well meaning members of the guild sensitive to consumer protection have “solved” the problem by crafting a program with so much consumer protection — read “barriers to entry” — that it will do little to solve the access to justice problem.

Simple economic principles this. The program assumes an educated and honest marketplace, on both the supply and demand sides. But, will the presence of legal technicians in the marketplace cause all — or even a few — of the petition preparers, paralegals, notarios, Craigslist frauds, Internet-based lawyers, and other gray market legal practitioners to take down their shingles? Enforcement of UPL laws is already haphazard and cumbersome — and the likelihood of change is nil. Will the large market of consumers who cannot afford admitted lawyers understand the difference between licensed legal technicians and the gray market, especially a gray market that will have lower operating costs and lower ethical standards? It would be simpler to just allow the large pool of law graduates who fail the bar exam but reach some lower standard and satisfy the moral standards to obtain a limited practice license, and create areas of consumer practice for them — uncontested no asset divorces, traffic court, etc.

Frederic E. Cann, Portland, Oregon

Licensing legal technicians is a laudable goal — providing lower cost options that attorneys for persons seeking assistance with legal matters.

However, the proposed rule has several flaws: 1) Overly stringent qualifications. In addition to obtaining a paralegal, legal assistant, or bachelor’s degree, the legal technician must intern for two to three years under a lawyer’s supervision. Considering that a legal technician can only practice in Title 26 (family law) matters and can not actually represent clients in court, these qualifications are onerous. Who would spend four or five years to complete the degree and the internship in exchange for such uncertain income? 2) Overly restrictive practice. The Title 26 family law area is the only practice area open to legal technicians under the proposed pilot project. It is unrealistic to think that anyone could afford to become a legal technician on income generated exclusively by family law matters. The rule should be expanded to include all of the areas of practice originally considered by the bar — family law, immigration law, landlord-tenant law, and elder law. 3) Mandated “financial responsibility.” How can a legal technician who earns significantly less money than an attorney be expected to afford liability insurance? 4) Continuing education requirement. CLEs are expensive. Unless the bar is willing to offer CLEs to legal technicians at a reduced rate or free of charge, this requirement should be revised.

The WSBA should offer a broad legal technician program from the start. This should include several areas of practice and reasonable expenditures. Legal technicians are the wave of the future — they will have much to offer the public if given a fair chance.

Patricia Michl, Lake Tapps