Letters to the editor

Voices from the past . . .

. . . a family of attorneys

I read with interest your article in the January issue of the Bar Journal, "Never too old to practice, bar veterans keep going."

I wish to call your attention to the fact that my father, Isidore B. Dockweiler, founded the firm Dockweiler in 1889 with other attorneys. As other partners departed, the firm became Dockweiler & Dockweiler, with his sons.

Out of eight boys and three girls, five boys became attorneys. Thomas practiced law and was a World War I vet. Henry was in the diplomatic service and returned to Los Angeles to practice law. John was an attorney, later ran for Congress and served three terms, was defeated in the primary for governor, but was subsequently elected district attorney, the office he held when he died in 1943.

I was admitted to the bar in 1935 and also was in the firm except for 2 1/2 years in the service. None of the female members of the family studied law. As I often said, I think we are the oldest practicing family law firm of some 106 years in California.

I enjoy your publication and hope that I still will be reading it in more years to come. With my demise, even though I have nephews who are also practicing law, like Marcus and Sean Crahan, the family law firm of Dockweiler & Dockweiler could come to an end, or upon my retirement, which I am not presently contemplating.

Frederick C. Dockweiler
Los Angeles

. . . inspiring the young

The lead article in your January issue of California Bar Journal should be an inspiration to younger generations of attorneys. The example of attorneys practicing 50 years and more in California must mean something in an era of high burnout and defection among younger lawyers to other careers.

One of the great advantages of law practice is that it allows its practitioners to maintain their mental acuity to an advanced age - other health factors being equal. The law challenges the intellect of its practitioners with a steady stream of real life issues and situations, no two of which are identical.

That these elderly bar veterans should have maintained both their intellectual acuity and avidity for the law to an advanced age is a testimony of inspiration to young lawyers today.

While still on the younger side of life (and law practice), of two things I'm certain:

First, that these older attorneys clearly did not need MCLE requirements to motivate their learning to keep up with changes in the law.

Second, that they must have felt well enough about themselves and the legal profession to have committed their lives in dedication to the practice of law in their communities.

The legal profession should benefit greatly from their example and inspiration.

Samuel Rudolph

. . . a lawyer's lawyer

I am stunned and disappointed that such a fine publication as yours would publish a lead article about older lawyers that eliminates the most distinguished practicing older lawyer in the entire state. How could you do such an article and fail to mention 93-year-old former State Bar President Joseph A. Ball of Long Beach?

Your article was interesting and enlightening. It purported to describe how many older lawyers are active, suggesting that law as a professional skill only gets better with time. Yet it completely eliminated some of the real living giants of this great profession.

Joseph A. Ball of Long Beach is truly the renaissance lawyer of California. He is still practicing in spite of various physical impairments. His mind is keener than most older or younger attorneys. He is truly a lawyer's lawyer in the grandest sense. He is a former State Bar president. He was staff counsel to the Warren Commission which investigated the assassination of President Kennedy. He is equally at ease with high-profile civil or criminal trials. He is very able in handling all kinds of transactional matters. During the 1940s, 1950s, 1960s and 1970s, he was known everywhere as the lawyer of California.

He is still going strong. He is the best example we have of ethical values combined with skill and good judgment.

Donald B. Caffray
Long Beach

Trust fund program does not steal client money . . .

A recent letter attacked the Legal Services Trust Fund Program, which distributes the interest on attorney-client trust accounts to fund legal help for indigent Californians.

This program does not "steal client money," as Volney Morin alleged, because the law applies only to deposits that are too small or too short-term to earn income for the individual client. Before the law was passed, banks could keep the earnings on these accounts.

Larger and longer-term client funds go in separate accounts and clients receive the interest. State and federal courts have upheld both the constitutionality and ethics of this and similar programs that now exist in 50 states and the District of Columbia.

All expenses come from the fund itself. In the face of sharply lower interest rates that caused revenue to plunge 70 percent, the State Bar temporarily reduced the staff to cut costs. Over the life of this program, the bar has spent just 3.5 percent of the interest on administration, some of that for negotiations with banks to improve rates and charges and a campaign to identify and correct bank errors that together have brought in far more money than the total we spent on administration in the last five years.

Martin T. Tachiki
Chair, Legal Services Trust Fund Commission
Los Angeles

. . . Or does it?

It was refreshing to read Volney Morin's letter and know that there is at least one other California lawyer outraged at the institutional theft practiced by our organization. Many years ago, when this all started, I managed to get published an op-ed piece disparaging the practice. The response I got nationwide - all of it incredulous and unbelieving - was awesome. The clear consensus: we're crooks.

I then dabbled with a bit of office practice whereby I explained to clients why they didn't get interest on their own money in my client trust account. Their jaws made a clunk sound when they hit the desk.

And still the theft of client money goes on, measured in the millions, justified by the specious and tortured reasoning that it's really neat and OK because the stolen funds go to a good cause.

Our bar leadership should wonder not why we members disavow it and its pronouncements on ethics, practice standards and the like. It isn't because we don't understand. It's because we can't think cynically enough. We still have trouble with these olden times ideas of honesty and integrity.

Jeremy H. Evans

Flimsy source of shame

I just got my swell plastic bar card to replace that "flimsy . . . source of shame." Personally, I found that having to listen to all those petulant, sniveling complaints about the appearance of the card was a source of shame. Does this mean that the whiners are going to start sounding like adults, discussing substantive matters? Horrors!

Maybe they can focus their energies on how unpleasantly bulky the new cards feel in their wallets.

Janay Ann Haas
Rogue River, Ore.

Repeal the Fifth;
it protects the guilty

Much has been written about the need for reform of our criminal justice system in light of the Simpson trial and verdict.

Most remarks focus on the jury selection process, problems arising from long sequestration and the requirement of a unanimous verdict.

These certainly need to be addressed, but one of the most glaring problems is overlooked, and that is the effect of the constitutional right of a defendant in a criminal case to remain silent, which has been construed to mean that he can also refuse to give any statement to investigators during the investigation.

This constitutional right has been sanctified over the past 200-plus years under the delusion that it is necessary to protect the innocent. It protects only the guilty. An innocent person does not need the protection of the Fifth Amendment. He or she would be the first who would want to speak.

Society owes no moral duty to a suspect or the guilty other than not to mistreat him or her and to afford them a fair trial. It owes no one the right to obstruct justice by hindering the search for the truth.

The solution, it seems to me, would be to repeal that part of the Fifth Amendment which protects an accused from self-incrimination and to provide by statute that no statement made in the presence of investigating officers by a person suspected of a crime shall be admissible in evidence against such person unless given before a magistrate, with counsel for the suspect present, unless such right is waived before the magistrate, and the proceedings duly recorded.

C. Douglas Smith
Superior Court Judge, Ret.
Santa Barbara

Law can be used to assassinate justice

Two letters in the January issue indicated that law schools have no control over the moral character of their students, and therefore should not even try to motivate them to uphold high ethical standards as practicing attorneys. I believe that any educational system that gives up on attempting to promote ethical behavior does so at the peril of the society it is supposed to be serving.

A person's character is not fixed at the time of entering law school or at any other stage of life, but instead is susceptible to modification and improvement throughout all of life. If law schools refuse to even make the effort to inspire students to be ethical, they are in effect promoting the attitude that what is important in the "real world" is technical legal knowledge and not moral character.

The tremendous harm that can result from that type of attitude is exemplified by Nazi Germany, which excelled in various fields of technical knowledge and had a tremendously productive economy. Yet in the absence of a sound moral philosophy to guide that society, its scientific advances and technical knowledge were used to perpetrate some of the greatest evils in human history.

Anyone who has seen the damage that can be caused by unscrupulous lawyers knows well that a similar result applies in the field of law. In the hands of highly intelligent attorneys who are selfish, heartless and unprincipled, the law can be used to assassinate justice and create a veritable hell on earth for many innocent persons.

Joseph C. Sommer
Columbus, Ohio

California wasn't first

In the article about accommodating persons with disabilities in California courts, the author states, "Rule 989.3 is the first of its kind in the nation."

Being licensed in both California and Oregon and having practiced in both, I must disagree. Since at least August 1994, the Oregon Uniform Trial Court Rules have included Rule 7.060, which provides essentially the same as the new California rule.

I myself am disabled - totally blind - and although I have only once requested accommodation, it is worth noting that Oregon beat California to the punch.

Bruce B. Harrell
Ashland, Ore.

Tort reform smells like a rat

I am one of many lawyers who does not make a living from contingency fees, but I have done some research into the three initiatives proposed for so-called "tort reform" - Props 200, 201 and 202 - and have discovered one strange but significant fact. A section of Prop 200 (no-fault auto insurance) called "cost control" ties the rates defense doctors will be paid to the rates promulgated in the Workers' Comp system.

This is ironic, as the best arguments against no-fault insurance can be obtained by an observation of the horrors of Workers' Comp. These arguments include the results of reducing attorneys fees to a small percent (12 percent) of a small recovery - fraud and questionable claims abound and claimants are routinely unhappy.

But the really telling fact is that close analysis reveals that this isn't cost control - it's cost inflation. The costs of health care delivered under Workers' Comp have risen at a rate of approximately 150-200 percent - far faster than the same health care delivered under private health plans.

It doesn't take a rocket scientist to figure out that any argument we attorneys make against these initiatives is going to seem self-serving - but neither does it take a rocket scientist to smell a rat. Even those of us with no plans to earn our living from PI or shareholder suits may want to lobby against this odd package of soi-disant consumer reform propositions - lest we attorneys again take a hit for what seems to be rather than what is. If this mess passes, the resulting litigation will be our fault. Far better to vote it down now than untangle it later.

E. Carroll Straus
Mission Viejo

It doesn't add up

Jennifer Feres' column entitled "Pondering the Plebiscite" succinctly, albeit I am sure inadvertently, states a major problem with the existing State Bar. She reveals that we have more that 120,000 active State Bar members, and the State Bar plans to save $10 million over the next 10 years with a special assessment of $10 per year.

Hmm, sounds good! Let's see. $10 x 120,000 = $1,200,000 per year. $1.2 million per year for 10 years is $12 million (to save $10 million).

Yeah, I know I didn't calculate present value or the growth factor, but maybe we can appoint a State Bar committee to spend the $2 million and balance the budget.

Brian W. Aherne

Revise CLE rules to help new attorneys

As a new attorney, a point of concern has come up with respect to the CLE rules. I am required to get 14 credits by February 1997, which is not a problem. In fact, I will have 15.5 credits by Feb. 24, 1996, for functions that I genuinely wanted to sign up for. The problem? By February 1997, I may have well over 30 credits, of which many or most will not be applicable to my 14-month CLE period.

If I had the standard 36 hours/36 month period, I would be able to apply all of the hours by the end of the period. I am not willing to put off the seminars I want just to put the credits into the next cycle. I do not know if after Feb. 1, 1997, there will be 36 hours in 36 months that I am genuinely interested in. I will have many credits I previously got that I cannot apply.

A fair solution is that new attorneys can apply unused credits from the first (short) CLE period towards the next cycle. New attorneys will have a greater incentive to get credits quickly, when they can most use them, benefiting both them and a public that needs better-educated new attorneys.

Jeffrey Lustman
Los Angeles

Sympathies for Mrs. Swan

Regarding the letter from Frank L. Swan in your February edition, would I be right in assuming that when Swam writes that he told the female assistant U.S. Attorney that her ways reminded him "of a female stereotype" that he is paraphrasing himself?

Would I also be right in assuming that his eloquent turn of phrase was occasioned by the "female stereotype" having, just prior to the incident, bested him in legal argument before the "female U.S. District Judge" who subsequently disciplined him?

Whether these assumptions are right or wrong, does Swan really believe that it is only women in this country who expect to be treated with common civility, particularly by those who claim to be professionals?

At a time when our profession has so much to do to restore its tarnished image in the eyes of the American public, it is a surprise to find a member of our community so blinkered that he can actually write about "senseless civility standards."

Perhaps Swan should spend some time practicing in England, where attorneys risk serious discipline by their bar for such unprofessional conduct. This does not mean that English lawyers do not insult each other, but when they do, it is in a manner that might perhaps escape someone with the obvious intellectual powers, savoir faire and subtlety of Mr. Swan.

Should there be a Mrs. Swan, whether wife or mother, she has my heartfelt sympathies.

Nuala A. Bates

Filing fees don't make cents

This is a protest of the unfair, unreasonable and outrageous appearance fees for defendants in superior and municipal courts.

In superior court, the plaintiff pays a filing fee of $182 no matter how many defendants he sues. However, each defendant must pay a $182 appearance fee. If a plaintiff sues 10 defendants, he pays $182. However, the lawyer appearing for the 10 defendants must pay $1,820.

Similarly, in municipal court, plaintiffs pay an $80 filing fee no matter how many people they sue. If plaintiff sues 10 defendants, an attorney appearing for them must pay an $800 filing fee. That is outrageous.

Incidentally, filing fees do not go directly into funding for the courts. They are a hidden tax because they go into the state's general fund.

Edwin B. Stegman
Century City

Help for a terminally ill boy

Craig Sherwood is a 17-year-old boy suffering from terminal cancer. His greatest wish is to enter the Guiness Book of World Records as the person who has collected the most business cards; a little more difficult than it appears as he is allowed to take only one card from each company.

Please send your business card to Craig at: Craig Sherwood, Make a Wish Foundation, Atlanta, GA 30356.

Henry D. Murphy

The malpractice issue

So Angie Holland wants (Johnnie) Cochran fined and reprimanded.

Cochran made reference to malpractice by the prosecution during his closing statement, which is what should concern Holland. A strong case can be made against the prosecution on this matter. Hopefully, the U.S. Department of Justice and the State Bar will address this issue during their investigations.

The malpractice issue will not go away until it is properly resolved.

Richard Olsen
Pine Mountain Club

On the plebiscite . . .

A BARgain for professionals

The cost of bar dues is cited as a reason to abolish the State Bar. Those who believe that we as lawyers will not have to pay for discipline if the unified bar is dismantled are quite mistaken. We only will lose the ability to control these costs.

All professionals licensed in California must pay a fee to the state for the right to engage in their particular occupation. This licensing fee does not enable these licensees to participate in other professional activities; an additional fee is charged for membership in their professional organization.

The State Bar is in fact a bargain when compared to costs of participation in other professional organizations. While lawyers pay $478 in bar dues, physicians pay $1,162.50 to cover membership in the California Medical Association and a licensing fee to the Board of Medical Quality of the Department of Consumer Affairs (set to increase to $300 in 1997). The licensing fee alone for podiatrists is $400 per year.

Abolishing the unified State Bar will not eliminate yearly fees for lawyers, and there is a distinct advantage to paying dues to an organization run by our representatives who must pay the same dues.

Walter Cochran-Bond
Los Angeles

Despite stupidity, the bar is the best alternative

I have recently been involved in disciplinary activities involving a state law which is ambiguous at best and is not uniformly applied in all jurisdictions. Still the State Bar has sought to impose sanctions in bringing a charge against me for a matter of public record which does not involve dishonesty, moral turpitude or prejudice to a client in any way.

As a result of this stupidity, I paid attorney fees of $1,500 and personally appeared in January at the State Bar office in Los Angeles for an informal settlement conference, the results of which are no different with regard to my future course of conduct than if the charge had never been brought.

May I suggest that the mandatory State Bar is the best alternative, philosophically speaking, for the society and the legal profession. There would be no need for such a plebiscite if the Board of Governors would exercise a little more common sense and remember that the purpose of the State Bar is to serve the interests of justice, not the inflated egos of individuals.

Michael J. O'Hearn

State Bar treats its members like children

As we come again to the time of year when our bar fees are due and a new MCLE cycle begins, we can reflect on what it means to be a rank-and-file lawyer in this state. To be a member of the California bar is to endure the chronic insult of being treated as a child, in need of constant control and correction from above.

It means being shaken down for the highest bar dues in the country as a condition for earning our livelihood. And since you have to get a child's attention to make him do something on time, the fee notice includes an IRS-like threat that there will be a 50 percent penalty if the check doesn't come in by the chosen date.

It means having MCLE hoops to jump through, no matter how meaningless. It means more money to pay and time to serve to keep our licenses. Sort of like traffic school.

Being a member of the bar means being told by daddy that there are monsters under the bed, and that if we vote in the referendum to abolish the bar, they will come out and bite us. But this time I think we will find out for ourselves.

Mark A. Leinwand
Woodland Hills

Bar speaks effectively
for all California lawyers

Although I sympathize with some of the frustration expressed by those who attack the mandatory bar, I have yet to see anyone offer a sensible or concrete notion of what would replace it.

Whatever the faults of the current State Bar, inefficiency and a loss of organizational focus would ultimately cost lawyers more. I have no doubt that new agencies would be set up by the legislature to regulate us and to provide some of the services that the State Bar now provides. In particular, those who believe that lawyers would not have to pay - and pay dearly - for discipline if the unified bar were abolished are dreaming. The cost of maintaining our professional licenses would not be reduced by much, if at all.

More important, much of great value to the legal profession in California would be lost were the bar to be dismantled. A mandatory bar permits - in fact, requires - the State Bar to speak for all lawyers of California. A mandatory bar ensures that all attorneys, like it or not, have a stake in the organization that speaks for the profession.

The voice of a voluntary statewide bar association would never have the credibility and influence of the current state bar. The positions of a voluntary bar would be prone to change as its membership waxes and wanes. A voluntary bar association would, moreover, be open to charges that it is not truly representative of the profession.

I, for one, do not see that as a step forward. It is far better that we try to get along together.

There are few among us who have not, from time to time, felt some objection to an act or pronouncement of the State Bar or been disappointed by its failure to address a particular matter. But to let that feeling flower into a desire to abolish the institution is akin to cutting out one's tongue to cure malapropism. We may never speak again. The profession will be diminished greatly if we abandon the one, statewide organization we now have.

Eric Alan Webber
Los Angeles

Abolition would mean disaster for legal services

From my vantage point, there are many important reasons to maintain our unified bar. It promotes and enforces the concept of equal access to justice as a professional responsibility. It provides a forum where legal services attorneys can work collaboratively with the judiciary, the legislature and bar leaders on issues of common concern. The unified bar's larger membership means that more attorneys are exposed to messages about equal justice and pro bono services than would be the case for a voluntary bar.

The move from a unified bar to a voluntary bar would be disastrous to the poor and otherwise disenfranchised people in our state who look to the State Bar for leadership in addressing their concerns. Such a move also would be a direct slap in the face to those members of the profession who have dedicated their entire career to providing legal services to the poor. Now is not the time to turn our backs as a profession on the concept of equal justice.

Gregory E. Knoll
San Diego

Sections' effectiveness would be compromised

The unified bar is essential to the continued vitality of its 17 sections. The sections do much more than just sponsor programs. They draft, propose, review and comment on legislation, bringing to bear specialization and expertise that cannot be replicated. They publish thousands of pages per year of journals, articles, outlines and other publications that greatly benefit not only State Bar members at large, but also the general public.

They promote the best things the State Bar has to offer, including professionalism, service to members and the public, pro bono opportunities, enhancement of diversity and networking and business development opportunities. The sections are on the cutting edge of innovative projects such as the development of better databases and the provision of on-line computer services to lawyers and the public.

The State Bar's self-governance and ability to change are important tools to accomplish future tasks and better serve the public. We do not want to become more entrenched in governmental regulation under the Department of Consumer Affairs.

Clara L. Slifkin
Chair, Council of Section Chairs
Los Angeles