Katrina Relief
To the Editor:
Thank you for printing Karen Murray’s article about her trip to help some of the victims of Hurricane Katrina. What a moving article! It made me understand better the suffering there. I am so impressed by Karen, and appreciate so much her work for the people affected by the hurricane.
- Rosemarie Warren LeMoine
RPC Changes Criticized
To the Editor:
I write in response to Ross Farr’s summary, published in the December Bar Bulletin, of proposed rules of ethics.
The rules would profoundly change the legal profession, and should be rejected.
A lawyer has one function -- to protect the client from a court or executive agency which may harm the client. The client may be a pharmaceutical company, an asbestos company, or a large software developer or a criminal defendant with dozens of priors or a residential property owner, a parent in divorce court, or a small business owner -- in a word, anyone. All are subject to losing their freedom or property due to order of the court.
It is not the function of the lawyer to improve society, to assist the courts or to provide information to others who wish to change or improve society. That is the function of voters, politicians, charities, interested parties, in short, everyone interested in the well being of a democracy.
Loyalty and confidentiality are essential to the function of this lawyer. No matter how bad the client may be, no matter how reprobate his conduct may be, no matter how noxious his pollutants may be, he is entitled to a lawyer in whom he can confide, with confidence, and he is entitled to a lawyer upon whose loyalty he can rely.
The proposed rules, which are derived from ABA proposals, would destroy that confidential relationship and that expectation of loyalty. They require the lawyer to rat on the lawyer’s own client by repudiating the client’s testimony, or by bypassing the corporate client to be an informant to some other part of the corporation, or by informing on the client when there is some amorphous possibility of financial harm based on “fraud” or the possibility of physical harm based on client activity. Quite a broad standard. The rules also require lawyers to dilute loyalty by filing bar complaints against each other for ethical violations. Of course, an obligation to inform on the client disastrously dilutes the obligation of a lawyer to be loyal.
Perhaps worst of all, the rules require the lawyer to be judge of the client instead of a source of succor to the client. The lawyer is supposed to refuse to allow the client to testify if the lawyer believes, or might believe, the testimony to be false. Of course, the safe course for the lawyer is to discourage the client from testifying.
The rules gut the promise of confidentiality and the duty of loyalty. In my opinion, due process requires that a party, civil or criminal, has a right to a lawyer, and a lawyer poised to rat on the client or inform for other masters, is no lawyer. They violate the civil and criminal right to have a lawyer. If these rules ever go into effect, a criminal appellate lawyer will argue that any lawyer burdened by these rules and operating under these grave conflicts automatically provides ineffective assistance of counsel. And since all lawyers operate under the RPCs, every criminal conviction in the state would have to be vacated because no lawyer can provide effective assistance under the burden of these rules. This would cause quite a disruption of the criminal justice system.
In every criminal case, both sides will be vulnerable to bar complaints from the judge or each other: the defense for putting on the defendant when counsel didn’t believe the client was telling the truth -- something that happens very often in criminal cases -- and the prosecution if they don’t file a bar complaint against the defense in the first place.
In corporate cases, lawyers will file massive suits against defense law firms because they will say the law firms knew of some possible environmental or other harm or imminent danger or financial mishap caused by their client, and failed to rat on the client. So, the lawyers would be environmental tort defendants just like their clients. It is easy to see these claims occurring as they are similar to claims already made against accounting firms and others.
The Washington Supreme Court purports to have authority to act as a legislature in creating these codified laws and then as a court in ruling on their validity. No government agency can be court and legislature. In this case, the court dramatically increases its own power to force lawyers to divulge information about their clients; in other words, the court asserts more power over lawyers and litigants, in a secret rule-making process. This is not proper.
In his October 2005 editorial on rebuilding faith in an independent judiciary, WSBA President Taylor states that the four fundamental principles of government are the rule of law, separation of powers, checks and balances, and judicial independence.
The rules violate all four: the rule of law because the Supreme Court adopts these rules in secret caucus without an orderly method of redress by the public or anyone else; separation of powers, because the court acts as a legislature and a court; checks and balances, because there is no other branch of government which can revoke these rules or determine if they are constitutional; and judicial independence, because the court sacrifices its independence by legislating in advance on matters, such as the nature of the right to an attorney, on which it is supposed to rule in an independent and detached manner.
This letter does not purport to address all of the objectionable proposals or discuss defenses of the court’s authority.
As a start, the entire proposal to amend the RPCs should be rejected.
- Roger Ley
