Letters to the editor

California Bar Journal invites its readers to send letters on any topic. All letters must be signed with a daytime telephone number and complete address (only the city or town will be used in print). All letters are subject to editing, and no anonymous letters will be printed. Send letters to Editor, California Bar Journal, 555 Franklin St., San Francisco, CA 94102-4498; fax to 415/561-8247; or e-mail: calbarj@ix.netcom.com.

Tort shouldn't be a dirty word

Failed Propositions 200, 201 and 202 should have failed by much wider margins. That 202 was defeated by a percentage point was a catastrophe. Insurance companies, manufacturers and corporate directors will see this narrow vote as continuing opportunity for them.

Sure, a couple of votes were probably garnered by people who like to see wolves prancing around in the snow. But the marketing firm employed by Consumer Attorneys of California (CAOC) in this ad campaign should get none of our future business. The television ad campaign failed to inform the public and was a complete waste of money.

Frankly, I feel strongly that the consultants who advised us that no lawyers should speak on behalf of our views regarding these propositions were dead wrong. Good trial lawyers would be fine speakers and representatives on behalf of the California legal profession for the same reasons that they hold high appeal to juries: They are hard-hitting, truthful, no bull.

We have been convinced that the people are stupid, unable to digest facts. Marketing consultants would have us believe that we have to put some sort of spin on the issues to get a vote. We have to be abstract. Associate our issues with mothers and animal lovers and every other group we come to stereotype.

It's not true. You don't win trials with spin. Bring a $500 an hour expert in to lie and the jury will conclude he's a hired gun paid to lie. The power of the truth with a dramatic presentation beats Charlton Heston's half-truths: "15 percent sounds fair, doesn't it?"

I think that the people of California will be better served if these issues are handled with a more direct approach. We need to draft propositions to return California to the forefront of national equity courts.

We need to tell the people that the word tort isn't the dirty word that insurers make it out to be. Tell them that tort encompasses negligent conduct of employers who discriminate; big-money insurer practices of unfair dealing and bad faith to injured and financially helpless victims; manufacturers of defective and dangerous products, etc. People will believe the truth and quit believing the lies.

Timothy Lee Davis
San Diego

The Fifth Amendment: Protection for all

I was breathtaken by the letter in your March issue advocating repeal of the Fifth Amendment ban against self-incrimination and adoption of a law making a defendant's statements inadmissible unless made before counsel and the court, and the proceedings duly recorded. The proposal's clear intent is to force the accused to testify against their will.

The writer states that the basis for the Fifth Amendment rests on a delusion that it protects the innocent and that it really protects only the guilty. The true rationale, however, is that it helps protect everyone from abuses by the state. One need only review the mock proceedings that terrorist groups and rogue regimes hold to understand why protections, including the Fifth Amendment, are needed to prevent any risk of trials where the results are pre-ordained.

The writer also states that the innocent are the first who would want to speak. That, however, is not necessarily so. The innocent may be unable to corroborate what happened with independent evidence; for instance, he or she may have been alone at the time of the crime. Even worse, the government, after hearing the defendant's story, may rebut the story with fabricated evidence - a possibility a civilized society [should] prevent at virtually any cost.

The proposed repeal of the Fifth Amendment also rests on the assertion that no one has the right to "obstruct justice by hindering the search for truth." Let us put aside the lumping together of suspects and convicts. Our history shows that government officials, including the police, can and do lie, and can and do create evidence.

Giving the government the power suggested thus may not lead to the truth at all, but to a version of the truth that certain people want us to see. Imposing the rule by statute also simplifies the means for the government placing a noose around all our necks, as each new "get-tough-on-criminals" legislature may relax the rules even more.

Charles R. Perry
Palm Springs

I read retired Superior Court Judge C. Douglas Smith's letter inferring that the Fifth Amendment protects the guilty. He seems to suggest that a constitutional amendment be passed to do away with the privilege against self-incrimination.

It is mind-boggling to think that a judge (retired or otherwise) can, with a conscience, urge the repeal of the Fifth Amendment. As it is now, law enforcement personnel digress from the truth as to suspects' waivers. With the Fifth Amendment, it would be open season on false testimony.

The Fifth Amendment protects everybody.

Joe Ingber
Los Angeles

I was stunned to read the retired judge's letter proposing repeal of the Fifth Amendment's provision against compelling a defendant to give evidence against himself. I do not think it unreasonable to assume that any lawyer, let alone a superior court judge, would understand the vital necessity of such a provision.

Not only does this aspect of the Fifth Amendment discourage coercion and other improper tactics by police during interrogations, but, frankly, most Americans find it repugnant to imagine a suspect being forced to testify against himself under oath, thereby forcing a choice between self-interest and perjury. What benefit would be gained?

Even more appalling than this suggestion is Judge Smith's proposed replacement. Does he actually believe that forcing the police to take a suspect before a magistrate in order to effect a valid Miranda waiver would benefit law and order? Doesn't Smith realize, as all of us in law enforcement do, that most cases are won because of a suspect's statement to officers under Miranda and not whether he chooses to testify at trial?

David W. Simon
Joshua Tree

Protecting the public
from nonlawyers

My understanding is that the State Bar protects the public from bad lawyers, but does not protect either the public or lawyers from people practicing law without a license. I am an estate planner and am appalled that a person with less than a high school diploma can write a will or trust and the bar does not lift a finger.

I am writing to request that the State Bar add to its list of activities protecting lawyers from the competition of people who practice law without a license and, in doing so, protect the public from these same people.

Julia P. Wald
San Francisco

Arbitration for discipline

Since the majority of the cost of bar dues is related to the discipline of attorneys, the State Bar should adopt a policy of binding arbitration in attorney discipline matters for application to all bar members. This policy could be made in the form of a supplemental agreement as part of the annual renewal for the attorney license and could apply to either the present bar system or a new system as a result of the plebiscite.

Under a binding arbitration agreement, the attorney in a disciplinary matter would be limited to a one-half day hearing before a duly appointed judge or a mutually acceptable arbitrator, and the arbitration program would be administered by the State Bar. This would appear to be a logical approach since disciplinary matters are usually one-issue items resolvable by applications of principles of law in a short hearing.

This would speed up the disciplinary process and reduce costs. Since the general trend nationally is for arbitration, the State Bar would be adopting a reasonable and readily acceptable solution to attorney discipline matters. The result would substantially reduce bar dues.

Steven T. Delbridge

Senior lawyers deserve recognition from the bar

At 86, I thought that I was surely one of the few old-timers in the active practice of the law until I read "Never too old to practice" in the January California Bar Journal. My reaction to the news that there are lawyers over 90 still practicing is mixed: on the one hand, I am jealous of their ability to engage in the active practice at their ages. On the other hand, I question whether at such age I really want to be active at the bar, or, more to the point, if I want to be around at all to see what has happened to the practice of the law.

I was surprised to learn that the bar does not issue certificates of recognition to those attorneys in good standing for 60 years or more. I have been in the active practice of law in the county of Los Angeles since 1933, except for two years in military service. I still have office hours five days a week, having given up Saturday mornings some years back.

I believe, however, that there are not many other active practitioners of 86 or over who can, as I do, make the following claim: I still play singles tennis on a regular weekly basis.

Jay J. Stein
Beverly Hills

No escaping dishonesty

One would have made a mint if he/she had bet a year ago at 10,000 to one that O.J. Simpson would be free and his lawyer F. Lee Bailey would be in jail. Such is the perversion of the legal system.

These bizarre unfoldings should come as no great surprise. The heart and soul of the legal profession is the dedication to truth with all one's heart and soul and energy. The first time this is deviated from in any way and for whatever reason is the first foray into corruption from which there is no return. The first time one obscures the truth or hides it or tries to cover it, at that moment the lawyer corrupts himself, his client, the profession and the institutions of justice. The moment that money and the bottom line take first place in the profession, there is no way back. The only way back is to acknowledge the truth and to rededicate oneself to it no matter what it takes or what it costs.

It is scandalous for our society when a lawyer is shown to be dishonest or untruthful because that rips the very soul out of a legal system. When an F. Lee Bailey goes to prison for what amounts to theft; or when a Leslie Abramson (if it be true) tries to fabricate, eliminate or pervert the truth of evidence, it is doubly evil: evil in itself and evil because it corrupts a system so important and vital for the true functioning of a democratic legal system. There is perhaps even a triple evil because of the vast notoriety of these lawyers during the O.J. era.

During the Middle Ages, priests and religious had processions praying that God would deliver his people from pestilence, plague and every evil. A more modern version of this prayer would be:

"From every dishonest lawyer, deliver us, Oh Lord."

Peter J. Riga

A continuing education misunderstanding

Your front page interview with Gov. Wilson reveals an ironic misunderstanding by the governor (and probably by many others) of just what the State Bar does for him and other California lawyers.

The governor was asked his opinion about whether the State Bar should be abolished. He first admitted he had not given it much thought, then he stated that one of the bar's successes was continuing education of the bar.

The State Bar is not responsible for "Continuing Education of the Bar." CEB, as it has been known from its founding in 1947, has since the early 1970s been a self-sustaining entity that is not supported with one dime of anyone's bar dues. CEB is part of the University of California and is co-sponsored by the State Bar, which does not invest in or receive any proceeds from CEB.

The governor thinks that CEB is one of the most impressive projects of the dues-supported State Bar, and CEB in fact has essentially nothing whatever to do with it, in terms of control and financing.

Sherry H. Smith

We believe the governor was talking about minimum continuing legal education, not CEB.

It's beginning to look
like a conflict of interest

Consumers call the State Bar based upon their belief that their attorney has done something improper. Most of the complaints do not warrant disciplinary action.

Nobody blames termite inspectors, as a profession, for the fact that the Structural Pest Control Board has failed to discipline an inspector; the Structural Pest Control Board is a state agency, not appointed by termite inspectors.

Nobody blames contractors, as a profession, for the fact that the State Contractors' Licensing Board has failed to discipline a contractor; the Contractors' Licensing Board is a state agency, not appointed by contractors.

However, when it comes to lawyers and the State Bar, which is governed by persons elected by members of the bar, people who are unable to obtain civil remedies via the disciplinary process see a conflict of interest.

The present State Bar disciplinary process is exemplary. Hopefully, the current members of the process will be retained by any state agency charged with the disciplinary process.

However, the appearance to the consumer of a "good old boys network" between attorneys and the disciplinary process will continue to concern consumers and will continue to cause us to gold plate the disciplinary process to avoid "any appearance of a conflict of interest."

The old saying goes that "a lawyer who can't spot a conflict of interest is like a plumber who can't spot a leak." The desire to maintain control of our own disciplinary process is costing us more than it's worth.

A. Chris Have