Oregon State Bar Bulletin — MAY 2004

Letters

It’s Up to You
Peter Appleton wrote a couple of months ago (Letters, January 2004) that 'society in general,' not just lawyers, should provide pro bono or reduced-fee legal services to low-income people. John Wight, writing last month (Letters, February-March 2004) agreed. And others weigh in from time to time, complaining that being conscripted to help the poor for free is unconstitutional or some such thing.

Maybe it’s time for a reminder that every single one of us who signed on to practice law in Oregon took on the duty to '(n)ever reject, for any personal consideration, the cause of the defenseless or the oppressed.' ORS 9.460(4). We can trace that duty back at least as far as the Genevan Advocates Oath, which dates to antiquity, and which over a century ago was praised as 'the creed of the upright and honorable lawyer.' [D. Bethune Duffield, The Lawyer’s Oath: An Address De1ivered Before The Class of 1867 of the Law Department, University of Michigan 6 (March 27, 1867) (available at the Harvard Law School Library).] Mr. Duffield goes on to say that the specific provision in the oath just mentioned is

…but confirmatory of the rules of good mother Common Law, herself, who … had conferred these privileges on the poor (and that in) this country … the same rule prevails; and the humblest and most wretched creature in the land, claiming its benefits, may, at any time command your services and mine to shield him from injustice and wrong, or secure for him a fair and impartial trial in the courts…

That’s not to say we lawyers couldn’t use some help. More money for legal aid would be a start. However, given the national Legal Services Corp.’s decades-long antipathy to legal aid and the lackluster response to our own Campaign for Equal Justice, it’s not likely help will be coming any time soon.

So, it’s up to you and me to shield the poor from 'injustice and wrong.' Society 'in general' may shrink from that obligation, but 'upright and honorable' lawyers can’t — and don’t. Meaning, if we start reneging on venerable traditions of our profession like this one, hell, we should all start selling shoes.

Glen H. Downs
Nehalem, Ore.

Making Amends
I read with interest Mr. Tepedino’s letter in the April issue characterizing Professor Miller’s article entitled 'Agents of Empire' (Oregon Legal Heritage, February/March 2004) as 'hurling in our faces inflammatory statements…'

Those who take the time to read the historical documents, treaties and Supreme Court decisions construing the U. S. Constitution, Article 1, Section 8, well understand that the erosion of Indian tribal rights has indeed 'robbed the indigenous peoples.'

Since it seems popular nowadays to propose constitutional amendments, here is my humble suggestion for a constitutional amendment which might promote Mr. Tepedino’s 'fair and balanced discussion':

'The retained sovereignty of the various Indian Tribes shall not be infringed or abridged by the United States or by any state. The Congress shall have power to enforce this article by appropriate legislation.'

Philip F. Schuster II
Portland

Legal Spam
As the general counsel of an ISP (internet service provider), I had more than a passing interest in the 'Canning the Spam' article (April 2004). The article was well done, and filters are indeed your best defense against spam.

Here in Washington state we have what is regarded as a very tough anti-spam law, but my efforts with a limited budget to effectively use it against professional unscrupulous spammers have been crippled by the fact that we can’t identify the spammer. The return e-mail addresses are bogus, the routings hide the originator, the registrants for the advertised websites are bogus names and addresses, etc.

The federal CAN-SPAM Act of 2003 may eventually put some bad spammers out of business, but it also has increased the amount of spam as it mostly pre-empts state laws and it provides an outline for sending legal spam. National retailers now have a road map and are increasingly sending legal spam.

Barry C. Maulding
General counsel, Isomedia Inc.
Redmond, Wash.

A Credit-worthy Play
As the bar member who sponsored and sought accreditation for the play The Laramie Project for MCLE diversity credit, I would like to correct some false assumptions and misunderstandings about this event and how it came to be approved, contained in recently published letters to the editor. Despite the claims of Mr. Howser et. al., the event was not approved within two hours. What happened was this: As an actor in this production, it occurred to me that this was the type of event that the OSB had in mind when it adopted the diversity rule. I phoned MCLE staff on Feb. 17, 2004, discussed the nature of the play and inquired whether this was the type of program that might get approved. Upon receiving a conditional positive response later in the day, I submitted a detailed written request for accreditation, with accompanying materials. I asked for expedited consideration, since the production was 10 days away and I needed time to publicize it among attorneys. I received a faxed response the next day. I provided MCLE reporting forms to attorneys attending the production and maintained the attendance records now required by the MCLE rules.

Contrary to the claims of your correspondents (none of whom actually attended the program), this was not a 'commercial' production. A non-profit organization produced this play, and over 50 local actors volunteered their time to bring it to Eugene. Watching The Laramie Project is not the same as reading a crime novel or fictionalized movie version of a criminal trial.

The Laramie Project depicts a series of actual interviews with citizens of Laramie, Wyo., following the murder of Matthew Shepard, a gay college student. All words are those of the interviewees or their interviewers, as well as public statements by others in the community. It is an exploration of community attitudes about homosexuality and hate crimes, and the reactions of the people of a small town to such a crime in their midst. It is intended to be thought-provoking, well-balanced and sensitizing, without espousing a particular agenda (see for yourself — read the script). This is, I submit, consistent with the general criteria suggested by the MCLE rules regarding diversity programs.

I have served on the Judicial Education Committee of the Judicial Conference and on the board of a major CLE provider, as well as having been the organizer or speaker at countless education programs. It is not uncommon to use video, skits or other media dramatizing the subject matter presented. This theatrical approach was an interesting way to explore the topic (as opposed to listening to a speaker pontificate), and the responses I’ve gotten from numerous attorneys who actually attended the program suggest that they agree. Diversity credits are sometimes difficult to obtain, and, given that we have the requirement, The Laramie Project was a legitimate and worthwhile way to fulfill it. I appreciate the OSB’s willingness to consider and facilitate its approval.

Gregory G. Foote
Judge, Lane County Circuit Court

Ditto
Regarding the two letters (April 2004) objecting to giving MCLE credit for attending the play The Laramie Project:

1. Attendance at the play was well-qualified for the MCLE 'elimination of bias' credit and provided superb training in recognizing how crimes of bias play out in the legal system, from witness interviews, prosecution decisions, news coverage and jury voir dire, to general community response.

2. The play’s script consists of edited interviews of the persons actually involved and members of that community. It is no more a work of fiction than any other edited reporting.

3. None of the Ann Rule books or TV movies cited by the letter writers have anything to do with the elimination of bias, as far as I can tell, and therefore do not qualify for the MCLE credit.

4. None of the letter-writers were forced to see The Laramie Project, and as far as I could tell from their letters, none did. If the letter-writers object to learning anything about homophobia or, as two of them have indicated in previous letters, racism, they can satisfy the MCLE elimination-of-bias requirement by attending programs on access to justice for individuals with disabilities or representing clients with personality disorders, unless of course they have ideological objections to learning about people with disabilities.

David Wade
Eugene


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