That day is HERE. The ABA is in the process of rewriting the entire Code of Judicial Conduct, including the provisions dealing with campaign conduct. There are many issues involved, from all expense paid judicial seminars, to the changing nature of American’s courts.

I serve on the committee which is rewriting the code. If anyone would like to review the work to date, it is available on the ABA website, abanet.org. If any of you have views or insights on judicial ethics which you would like to share, please contact me at tfitzpatrick@co.snohomish.wa.us. I would love to hear from you.

A revised judicial code will probably come up for adoption before the ABA House of Delegates this August.

Thomas M. Fitzpatrick, Everett

While it is correct that Washington's Rules of Professional Conduct exclude such language, variations of the phrase appear three times in the Preamble to theABA Model Rules of Professional Conduct: Paragraph [2] (“As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system."); Paragraph [8] (“[W]hen an opposing party is well represented, a lawyer can be a zealous advocate on behalf of a client and at the same time assume that justice is being done.”); Paragraph [9] (“[The basic principles underlying the Rules] include the lawyer's obligation zealously to protect and pursue a client's legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.").

It may be of interest to note that when, in October of this year,the Washington State Bar Association Board of Governors submitted suggested amendments to Washington's RPC pursuant to GR 9, the WSBA recommended that the Supreme Courtadoptthe Preamble to the ABA Model Rules nearly verbatim. However, the WSBA specifically recommended substitution of the phrase “conscientious and ardent” for “zealous” in the three instances cited above. According to accompanying WSBA documentation, "Washington has, since the adoption of the RPC in 1985, scrupulously avoided use of such terminology. Owing to its etymology, the word 'zealous' in this context could inappropriately be interpreted to condone extreme or fanatical behavior of a type that would be inconsistent with a lawyer’s professional obligations."

Douglas J. Ende, Seattle

I suspect that CR 11 is partly responsible for the large numbers of lawyers who do not like practicing law and therefore are constantly considering running from the law (a phrase from the late Deborah Arron's book). A motion for CR 11 sanctions is a mix of a malpractice suit embedded in a real case, with a contempt motion. If a judge does impose sanctions, it may for all time mark the judge and the petitioneras parties allied against the defendant lawyer. Or the reverse, if the motion is denied. I have no idea whether carriers cover these motions, or whether anyone asks, but the financial impact can be considerable because there are no limits on the amount of the fine. The entire process, regardless of outcome, is presumably stressful for many lawyers, and the time spent may not be billable. All these are reasons why lawyers would not want to practice law in an environment where they can be a defendant themselves the moment they leave the gate.

I believe CR 11 is unconstitutional for several reasons. First, litigants are entitled to bring their claims to court. They should not be required to withstand a preliminary "hearing" by their own lawyer before they can get into the courthouse.Not every litigant can provide supporting evidence for something they want to say. Alawyer cannot be trusted to determine if their client's cause meets some test of being "well grounded in fact," rather like the test for modifying a child support order perhaps. The lawyer himself, or herself, has topay and bear the ignominy if someone disagrees as to whether the facts are well enough grounded. Second, the award or denial of a CR 11 motion aligns the court with one party or another, which dilutes the court's obligation to be neutral and detached. Third and reciprocally, a lawyer who is a defendant loses loyalty and probably objectivity if she is a defendant as well as an advocate for the client. It is hard to understand how a lawyer can represent a client zealously and faithfully when the lawyer herself is being attacked both in terms of losing face, losing money, and facing public embarrassment. Finally, the supreme court has unilaterally, without review by anyone, awarded itself a vast amount of power over lawyers and their clients. Not all judges will use this power fairly. This power includes the power to impose a fine without any monetary limits not only for not making a "reasonable inquiry" but also for making an argument that isnt a good faith argument to change existing law, or for making an argument for an “improper purpose.” An improper purpose could be "needlessly increasing the cost of litigation," so the lawyer could be fined--and forced to pay attorney fees for the other side--just for exercising the now ephemeral right to a jury trial.Nothing increases the cost of litigation like a jury trial. This array of power to impose unlimited penalties for vaguely defined offenses violates the due process clauses.

It may be that many lawyers file frivolous, dilatory and noxious pleadings, but the remedy, if any, should be found elsewhere. The practice of law would be far better, and the cost to consumers would be far less, if the Supreme Court were to rescind this rule.

Roger Ley, Seattle