|Oregon State Bar Bulletin NOVEMBER 2007|
In her article "Finding and Fixing the Passive Voice" (July 2007), Megan McAlpin writes: "For example, you may find that you have written the following: ‘All pay raises must be approved by the board of directors.’ ...Since the board of directors must approve the raise, you can transform your sentence from the passive to the active as follows: ‘The board of directors must approve all pay raises.’"
In my opinion, Ms. McAlpin’s suggested change to avoid the passive voice only highlights the ambiguityof the original sentence, which she apparently overlooked, because her change now points out that it could mean that the board of directors has no discretion in approving any requested pay raise, although, of course, one could argue that that ambiguity is also present in the original. The bottom line is that, in my humble opinion, the rewritten sentence is no improvement and actually emphasizes the ambiguity even more.
Playing the Patriot, Part III
Perhaps Congress should investigate the purpose and intended scope of an executive order issued July 17, 2007, entitled "Blocking Property of Certain Persons Who Threaten Stabilization Efforts in Iraq." Is it a bona fide tool to fight the terrorist threat posed by persons "who might have a constitutional presence in the United States"? Or is it a disguised attempt by this administration to stifle anti-war dissent protected by the First Amendment?
Consider this scenario: Your client shows you an unsigned notice from the secretary of the U.S. Department of the Treasury declaring that a "blocking order" has been placed on your client’s "property and interests in property . . . in the United States," pursuant to the executive order. No warning was given.
Your client informs you that last month he attended an Iraq anti-war demonstration and donated $25 by check to the Bring the Troops Home Committee (BTTHC).
You call the Treasury Department and are told that BTTHC is a "listed" organization determined to be "undermining efforts to promote economic reconstruction and political reform in Iraq." You ask why no notice and opportunity for a hearing was afforded to your client before the blocking order took effect. You are told that under the executive order, the government is not obliged to issue prior notice of a listing or determination made.
You file suit for injunctive relief. The government files a motion to dismiss, reciting that the executive order precludes your lawsuit, including "any right, benefit, or privilege, substantive or procedural, enforceable at law or in equity by any party against the United States."
Your client informs you that family members who lent him money for your fee have now received blocking orders.
Congress may want to investigate whether the statutes relied upon for this executive order, listed in the order itself, authorize its issuance. If so, Congress should consider revisiting the enabling acts to assure that proper due-process safeguards are afforded to U.S. citizens.
Philip F. Schuster I,
Why No Mention of Alternatives to Billable Hours?
I write in response to the article "End Billable Hour Goals … Now" by Lawrence J. Fox in the August/September 2007 issue.
I read the seven-page article with considerable interest because the elimination of hourly billing by lawyers has been the subject of much debate in bar associations for many years. Although many people would agree with Mr. Fox’s criticisms of hourly billing, finding alternatives thereto has been elusive. Much to my astonishment Mr. Fox did not identify a single alternative.
Dentists and physicians have been able to attach values to procedures that they repeat often, based on a number of factors, primarily the amount of time estimated, and lawyers have been able to do so with specific tasks such as drafting wills. It has proved much more difficult to come up with alternatives to time billing, without putting either the client or lawyer at substantial risk, where protracted litigation or negotiation is involved.
The task of coming up with alternatives is further complicated by the demands of house counsel and insurance companies that time billing at particular rates be utilized and by case law requiring courts to consider time as the primary factor in ruling on attorney fee requests.
One would have thought that an article with the words "end billable hour goals" in its title would have at least mentioned some alternatives thereto.
Peter M. Appleto,
Thank you for printing Joshua Randall Trigsted’s poem, "Bankruptcy," in the latest edition of the Bulletin. (Briefs, Aug./Sept. 2007). It was refreshing to see and I hope, as another lawyer/poet, that you will see fit to print other poems in issues to come.
Ronald G. Talney,
The July 2007 Bulletin’s Bar Counsel column, "The Ethics of Unbundling," by Helen Hierschbiel, contains a mistake. The first paragraph, second sentence on page 10 incorrectly states: "The fact of assistance to a pro se litigant is material to the merits of the litigation." The correct information is, in fact, just the opposite. The fact of assistance to a pro se litigant is not material to the merits of the litigation.