Letters   to the    Editor

The statue of justice must have had clay feet

A brief and unscientific survey of the "current affairs" sections of my local bookstores revealed what are apparently the Four Horsemen of the American Apocalypse: 1. anti-family laws and rulings; 2. affirmative action; 3. immigrants; and 4. the O.J. Simpson trial.

With regard to the latter, I continue to be amazed (although I probably shouldn't be) by the intellectual dishonesty with which otherwise intelligent people writing in this publication and others cavalierly brandish that case as the foremost cause and emblem of Ameri-cans' lack of faith in the judicial system.

As members of the bar, it seems we would be more prudent to try to educate ourselves and the public of the larger context within which the Simpson criminal trial fits. Easy, partisan attacks and sound bite quality analysis hardly suffice to explain why one criminal case should bear the weight of allegedly bringing to a crashing halt 200 years of American jurisprudence.

Can this one pitiful (and pitifully conducted) case be the sole cause of such a grand demise? If so, I suggest the statue of justice must have had clay feet.

If not, please let's implement a moratorium (to last no longer than 99 years or until ice blocks the Stygian shores) on any further rehashing, bashing or self-righteous pseudo-insights into the American zeitgeist based on this single bizarre case.

Christopher Barnes
Los Angeles

Taking chances when it comes to potential violence

I read with great interest your lead article last month concerning the possible adoption of a new rule allowing the revelation of confidential information if an attorney believes a client may commit an act of violence. Several years ago, I called the bar's Ethics Hotline to determine the answer to this very question, which arose within the context of an initial interview with a prospective client.

I was disappointed on two counts. Not only was I advised there was an absolute prohibition against disclosure, but dismayed that it took several urgent phone calls and a number of hours to get any kind of a response from the Ethics Hotline staff, even though I stressed the potential urgency of the situation.

After conferring with a couple of my partners about the content of the discussion with the prospective client, I made a determination that he was probably just blowing off steam. At that same time, however, I decided that if I were ever faced with a situation where I determined that a failure to disclose would likely result in death or substantial bodily harm, I would take my chances with the State Bar and with the client and make the appropriate disclosures.

I have been practicing law in this state for nearly 23 years and have always been a strong defender of the attorney-client privilege. There comes a point, however, where one must follow one's conscience and realize that there is a higher authority than the law of man.

Paul E. Rice
Palo Alto

Bar's discipline is wimpy

I am appalled each month to read the details of disciplinary proceedings which result only in suspensions. I don't think I've read a single case which I did not think warranted disbarment. Why is the State Bar so wimpy?

My heart really went out to Audrey E. Flanagan of Sherman Oaks who wrote that she engaged a prominent attorney in 1989 who was publicly reproved (but should have been disbarred) in 1990. Had he been disbarred, Mrs. Flanagan would not have suffered the losses she did in 1994.

Martin F. Bloom
La Jolla

Commenting on (yawn) legal commentators

I commend Laurie Levenson (June opinion page) for her desire to improve the quality of legal commentary in the media. Unfortunately, Dean Levenson overlooked the most serious problem with legal commentators. For the most part, they are deadly boring. I have a few suggestions of my own.

n Resist the urge to comment on anything and everything.

If there is nothing legally significant about the story, say so. Of course, you run the risk of not getting on the news. See Levenson's suggestion regarding their motivation.

• Don't substitute personality for legal insight. Everyone knows lawyers are doomed to failure in that endeavor.
• Finally, please, please, please don't adopt a code of ethics — voluntary or otherwise.

There are only two likely results of a code of ethics: Even more boring legal commentary including commentary on the ethics of legal commentary. And a new State Bar Committee on Legal Commentary Ethics complete with its own Journal of Legal Commentary Ethics.

Gary P. Long
Irvine

The public should be protected from Silverton

Ronald R. Silverton's remarks in support of yet another attempt to seek a seat on the board of governors are evidence of the fact that he is an unrepentant sinner. The public deserves to be better protected.

Reinstatement of this disgrace of a lawyer reminds me of the old adage, "First time, shame on you; second time, shame on me."

Stanley K. Jacobs
Santa Monica

Reduce the budget by eliminating the board

It seems that State Bar presidents just can't wait to complain about the sorry state of the image of lawyers in this state and just can't wait to eliminate the one function that can actually do something about it: public relations.

Not only does the current president not understand what public relations is and can do, at least one of the current candidates wants to eliminate public relations entirely.

I've got a better idea. Eliminate the board of governors. Install an executive director who must face election by the membership every two years. Pay the E.D. $250,000 a year and give him a staff of 10, mandating the existence of a public relations position. Set the operating budget for the staff not to exceed $20 million.

Eliminate everything else. Take the $40 million that is saved and use it to reduce the dues for every lawyer in the state.

There. That was easy, wasn't it.

Stephen Glassman
Los Angeles

The professor sounds like a Dancing Ito

In the view of Laurence Tribe, Chief Judge Richard Matsch, who presided over the trial of Timothy McVeigh, "lost his nerve" and "became less than sure footed" during the penalty phase. Professor Tribe reaches this conclusion because the judge excluded such "vital" and "directly relevant" evidence as wedding albums, poems and home videos. In Professor Tribe's view, these exclusions "anesthetized" the proceedings, and "muffl[ed] the crimes of the victims." This is so silly it makes me wonder if the professor was a Dancing Ito.

First, despite these exclusions, enough unmuffled cries were heard during the penalty phase to more than once reduce jurors to tears. News accounts report that even Judge Matsch had difficulty retaining his composure at times. Second, the "pain and passion" evidence the prosecution was allowed to introduce resulted in a death verdict. Third, the victims and their families, who Tribe suggests Judge Matsch regarded as irrelevant, have praised the judge for his handling of the trial in all its phases.

Judge Matsch's handling of the McVeigh case has done more to restore the public's faith in the criminal justice system than any single event in recent memory. Reasoned commentary, even if critical, contributes to this process. Irresponsible pontificating does not.

Warren R. Williamson
Denver

Let Warden stand

My vote is for dismissing the frivolous appeal of the Warden v. State Bar case to the California Supreme Court. The MCLE program is clearly unconstitutional. It would take a constitutional amendment to overturn the Warden case, which I doubt will ever occur.

The dismissal will result in a substantial savings in wasted appellate attorney fees, unless someone is doing this pro bono, which I doubt.

The State Bar should immediately start budgeting for a fund for restitution to its members, like me, who were forced to take MCLE during all these years.

It is not too late to petition for dismissal of the petition for review to the California Supreme Court. I am sure Mr. Warden, who had guts to buck the State Bar, will not object to the dismissal.

Charles R. Spatola
Stockton

Education is no sham

I was amused to read that Mr. J. Marshall Collins thinks that MCLE is a sham. Do lawyers think that legal education ceases on passing the bar, or are they loathe to pay for any legal education not underwritten by the client?

I have participated in both mandatory legal and medical education. In medicine, because of specialization, one frequently ends up accumulating more than the mandatory hours. I have always felt the courses very helpful and have never resented the financial cost.

Education is never a sham.

Cicely Roberts
Fresno

MCLE is not worth the price of admission

MCLE should be scrapped. Having been in practice for nearly 55 years, it has been my experience that conscientious lawyers carefully research the areas of practice in which they are involved. If a lawyer is not conscientious, he will not last long.

I have yet to attend a CEB program which was helpful from a practical standpoint. Some were mildly interesting, but none was worth the price of admission.

The State Bar is akin to governmental agencies: the larger it becomes, the less it relates to those who are required to support it.

William H. Hoogs
Santa Maria

Four letters add up to a dumb mistake

A reasonable person just might conclude that, while the status of California's MCLE program is undergoing judicial scrutiny, the State Bar would exert every effort to make MCLE look good.

I recently received four identical letters from the bar, all addressed to me at the same address. All four bore the notations, "Official State Bar MCLE Notice Enclosed" and "Do Not Discard." Was I the only attorney in California so honored? I doubt it.

It's refreshing to see that the holier-than-thou folks at the bar can make dumb mistakes just like the rest of us. Yes, yes, I know . . . the computer did it.

Betty Rome
Culver City

Votes in a straw poll

If someone is keeping a straw poll, I would like to cast the following votes:

1. I do not think the bar association should spend any more money, time or energy appealing Warden v. State Bar.

2. I would like to see a referendum on this issue with the bar association conforming to the wishes of a majority of its members.

3. While MCLE is under discussion, I would like to see the "elimination of bias" requirement eliminated.

4. Malpractice insurance should not be mandatory.

John Paul Zima
Greenwood, Ind.

Bar should use ADR in its own litigation

I just read about the federal civil rights suit filed against the bar by Bill Morrow, Barry Keene and J. Bruce Henderson. I'd like to know the policy of the board of governors about the use of ADR in State Bar litigation.

It seems to me that policy issues like those raised in this civil rights case deserve public discussion and input from the membership to try to reach a resolution. If the process involved soliciting the view of the bar membership, it might not be any less expensive than litigation, but could be resolved faster than taking the litigation through several levels of appeals.

It would help not to clog the court system with matters we lawyers should be able to settle ourselves and provide the bar an opportunity to become more responsive to the membership.

Vigorously defending questionable policies in the courts hurts the reputation of the board of governors. It makes lawyers feel more and more powerless to affect policies through any means other than the court system. Is there any possibility the board could change this by adopting a policy to avoid litigation and look at other solutions whenever possible?

Susan Cameron
Soquel

What do inactive lawyers get for their dues?

There are more than 30,000 inactive bar members. At $50 each, that is more than $1.5 million we contribute to the State Bar. What do we get for our $50 fee, which is about the same as the active fee in many states? Virtually nothing. This is pure highway robbery.

Oh, I was mistaken. We do get the monthly California Bar Journal, the main purpose of which appears to be to let us know which of our former colleagues is being suspended or disbarred.

I would hope the powers-that-be would consider giving inactive attorneys two choices when we get our fee bill each year: Option 1 — Pay the $50 and get the Bar Journal; or Option 2 - Pay zero and we'll call you if we ever change our minds.

Elliot R. Smith
Rarotonga, Cook Islands

Mandatory pro bono just won't work

As a public prosecutor, how can I possibly do pro bono work? I'm not confident in my abilities to advise clients on legal issues other than the criminal law because that is the only area in which I practice.

The 12 hours of mandatory MCLE I am required to accumulate each year cannot make me competent in wills and trusts, transactional or real estate law, probate law, landlord/tenant law, or the like, even if I were inclined to take courses in those areas, which I am not.

I cannot represent criminal defendants in my own county since that would clearly be a conflict of interest, nor do I intend to spend my paltry vacation practicing defense criminal law in another county. Nor does it make sense for me to spend my vacation acting as special prosecutor for a "poor" county since my two-week contribution would do nothing for their deputy-to-case ratio, even assuming that is how I would wish to unwind from the stress of practice.

I suppose the bar board of governors will simply exempt publicly employed attorneys from the pro bono requirement. But they tried that with the MCLE program, didn't they? If you think you have problems with MCLE, just wait until you try to circumvent the 13th Amendment to the Constitution under the guise of extending the "privilege" to practice law in this state.

Patrick M. Slamon
Stockton

The bar should do something for us

Over the past couple of years, I have found more and more of my colleagues seeking out other occupations in direct response to the State Bar's activities. MCLE is a prime example. It seems designed for the promoters, not attorneys.

Voluntary investigation of complaints has been turned over to a mammoth and expensive bureaucracy which is more intent on soliciting complaints. Their cost is exceeded by their stupid pronouncements.

The intolerable high dues could be tolerated if the bar did something for us rather than against us. It is assumed, without any evidence, that all attorneys are malingerers, who will not keep up with the law in their specialties nor help a destitute client. Hence, Big Brother must force this upon us.

As if helping the MCLE promoters was not enough, the bar now turns to supporting the insurance companies in mandating malpractice insurance. Suggestions that the bar operate a malpractice program similar to that in Oregon, Canada and other English common law countries fall on deaf ears.

Let's put these harebrained schemes to a referendum of the membership.

Bruce M. Stark
Seal Beach

Concern about death row lawyers is disingenuous

I would like to issue an invitation to State Bar President Tom Stolpman to enter the real world. His concern about the "substantial delay" in appointing appellate counsel for death row inmates is both disingenuous and unnecessary.

The number of defendants sentenced to die who will ever be released from prison borders on the nonexistent. The great majority will have their death penalties affirmed and thus, on some day in the future, they will be executed. Prompt appointment of appellate counsel only hastens that day.

Stolpman's statement that "memories fade and witnesses and evidence disappear with time" implies that prompt appeals are likely to turn up new evidence which will affect favorably on a condemned person's situation. This view of what really happens borders on the cynical.

Stolpman's real concern appears to be the fact that some vocal members of the public and the legislature regularly decry the fact there is too much time between a death sentence being pronounced and that sentence being imposed.

Michael W. Roman
Berkeley

This criminal lawyer was turned down

Making it seem there is a shortage of lawyers that are willing to take on capital appeals, the State Bar president is appealing to members to take on the challenge.

I have been practicing law for over 26 years and have represented several dozen persons accused of murder, including three death penalty cases. I have taken about 15 murder cases to jury trial and have had seven acquittals. I have written about a dozen criminal appellate briefs and had three reversals.

I sent Robert Reichman (automatic appeals monitor at the California Supreme Court) copies of all of the above and received a terse reply that I am "lacking in experience" and thus not qualified.

Yet I know a real criminal defense lawyer who is doing all the work for a civil lawyer who was appointed by Mr. Reichman. That civil lawyer has had no criminal trial or criminal appellate experience.

I wonder how many lawyers have had my experience with Mr. Reichman.

Jerry Shuford
Indio

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.