California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - DECEMBER 2001
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OPINION

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Escape Claus...

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LETTERS

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Time to crack down on UPL

I concur wholeheartedly in the expression of my fellow lawyers regarding the State Bar taking an aggressive approach barring the unlicensed practice of law by paralegals, especially those who set up storefront operations under the guise of "legal typing services."

Even form-intensive areas of the law such as family law, bankruptcy and evictions require a full understanding of the legal complexities and ramifications the choice of checking off each particular box will have, and this requires a lawyer's training, experience and continuing legal education.

Plus, besides merely filling out forms, these paralegal typing services are advertising such things as incorporation, wills and living trusts, which require a lot more than merely checking off the appropriate box.

The State Bar has for too long turned a blind eye to "legal typing services," and it is time they cracked down on them for the unlicensed practice of law.

Allen P. Wilkinson
Whittier

Duped by a notary

In response to your article ("Unlawful practice hits vulnerable immigrants"), I want to make two small observations. First, the Ninth Circuit has recognized that unlawful practice by non-attorneys is fraud and consequently tolls the statute of limitations. In Lopez v. INS, 184 F.3d 1097 (9th Cir. 1999) the immigrant was permitted to reopen his deportation proceedings despite the statute of limitations, where he was duped by a notary public posing as an attorney.

The court stated, "This court long ago adopted as its own chancery rule that where a plaintiff has been injured by fraud and 'remains in ignorance of it without any fault or want of diligence or care on his part, the bar of the statute does not begin to run until the fraud is discovered, though there be no special circumstances or efforts . . . To conceal it from the knowledge of the other party.' (citations) This equitable doctrine is read into every federal statute of limitation."

Second, IRS regulations provide for investigation and sanctions for such actions. See Lopez v. INS, 184 F.3d at 1100; 8 CFR 292.3(a)(4), (15). I fully support all efforts made by the State Bar to eliminate this practice.

Charles E. Thomas
Los Angeles

U.S. should do no harm

I couldn't agree more with George Kraw's title: "First, do no harm" (November Bar Journal). What a wonderful idea. However, the response of the U.S. government is not to do no harm, but rather to bomb and then rely on good people like Mr. Kraw to justify why the bombing was done.

Since World War II, the U.S. government has engaged in warfare in Korea, Vietnam, Guatemala, Nicaragua, Lebanon, Yugoslavia, Haiti, the Dominican Republic, Iraq, Laos, Cambodia, Somalia, Libya and many other countries. It has subverted governments in Portugal, Chile, Nicaragua, Guatemala, the Domini-can Republic, Iran, Australia and many other countries.

"First, do no harm." It is a wonderful slogan. Too bad it has nothing to do with U.S. government foreign policy.

Alex Easterbrook
Redwood City

Freedom outweighs safety

George Kraw suggests that because the legal profession is not called upon to fight and die for the Constitution, its concern for our civil rights should not be allowed to hamper the military's and law enforcement's fight against terrorism. Mr. Kraw expressed an all-too-common sentiment; namely, that he places his personal safety above his freedom.

Giving government broader powers of electronic eavesdropping, easing prosecution of terrorists and the like may not seem like major infringements on our rights. How-ever, when combined with all the other infringements on our personal rights, especially those resulting from the "war on drugs," they will do immense and irreparable harm.

I took an oath as a lawyer to support the Constitution. I took an oath as a military officer to defend it with my life. If the price of zealously protecting our civil rights is that it will be harder to fight terrorism or even that I must give up my life, I will gladly pay that price - if it means our Constitution will survive and my children will enjoy some of the freedoms I have enjoyed.

Mr. Kraw fails to recognize that what makes our Constitution and Republic worth dying for is the very fact that it guarantees individual civil rights above all else.

If we discard our personal freedoms in the vain hope of protecting our national security, we deserve neither freedom nor security.

Steven A. Silver
Porterville

Should lawyers be required to apprentice?

Diane Karpman's article (September) noted that sole practitioners and members of small firms were far more likely to be the subject of disciplinary action than lawyers practicing in larger firms. This fact may easily lead to an inference that the disciplinary system is biased in favor of larger firms.

There is something wrong with small firms and solo practitioners being disproportionately liable to disciplinary action. But I believe there is a factor which the article failed to mention: mentors. In larger firms, new lawyers work under close supervision and even experienced lawyers are far more likely to work as members of a team rather than all alone. As a result, mistakes are caught before they harm the client and new lawyers in particular are taught potential pitfalls.

There is something wrong with a system where, in general, those lawyers who did less well in law school are often left with only the option of hanging out their own shingle. Other professions solve this problem by demanding an apprenticeship of one kind of another, as does the English bar. Should our profession do less?

W.F. Rylaarsdam
4th District Court of Appeal, Santa Ana

Assumption of guilt

In his opinion piece (November), John McNeece states that "in light of the scope and destructiveness of the terrorist attack and the evident interrelation between bin Laden and the Taliban, the U.S. is justified in asserting self-defense as a basis for the armed response against the Taliban."

In the Gulf War, George Bush Sr. had express authority from the U.N. Security Council to use force to expel Iraq from Kuwait. Resolutions 1368 and 1373, while condemning "terrorist attacks" and reaffirming the "inherent right of individual or collective self-defence" under Article 51, do not explicitly authorize the U.S. to attack Afghanistan.

Article 51 clearly contemplates the that the right of "self-defence" applies only when one state has been attacked by another state. All we know about the men who commandeered the planes that struck the Twin Towers and the Pentagon is that 15 of the 19 were Saudi Arabian citizens, two were from the United Arab Emirates, one was from Lebanon and the alleged  leader was Egyptian. The Bush administration has yet to provide any credible evidence that links Osama bin Laden or the de facto government of Afghanistan to the Sept. 11 attacks.

Since President Bush, and apparently Mr. McNeece, already know bin Laden and the Taliban are "guilty" we need not look to international law which requires the slow and methodical accumulation of evidence that will support indictments of individuals or organizations that planned the horrific attacks on Sept. 11.

Dennis McIntyre
Marina del Rey