|Oregon State Bar Bulletin AUGUST/SEPTEMBER 2007|
The Work Stands for Itself
I write in response to Holger Uhl’s letter (June 2007) complaining about the publication of "Uncharted Waters" (April 2007). I admit at the outset that I have what could be characterized as an extreme left-wing political philosophy; but that should not make what I have to say less valued than if I had no political philosophy or an extreme right-wing political philosophy.
The political philosophy of a person or organization should not be used to smear their work. Let the work stand for itself. Does that fact the Center for Constitutional Rights is often on the side of the downtrodden or often on the side of holding in check governmental actions that seek to limit constitutional rights mean that their work is suspect or unworthy of publication?
All cases have political meaning — would an article about an attorney’s participation on the winning side in the recent Supreme Court case that struck down the Seattle and Louisville school districts’ efforts at achieving diversity in public school classrooms be characterized by Mr. Uhl as "political propaganda"? How about an article by an attorney participating on the winning side in the recent Supreme Court case that very narrowly construed the right of an employee to sue under the EEOC for pay discrimination?
Just because a case involves political interests does not mean that an article about the case is propaganda, does it?
Where Is the Minority Voice?
I am looking at the cover of the July 2007 Bulletin and notice that almost every face is white. Are there no Asian, Hispanic and African American female attorneys? Where is the minority voice? Don’t they have an important view to share? In this day and age I found the absence of this part of the bar very disappointing and would like to know why it apparently was not included. Or, am I missing something?
Editor’s note: Indeed, the older group is entirely white. Since it was a reunion of those who participated in a similar interview 14 years ago, there wasn’t much we could do to alter the makeup of that group. Of the second group, we made pains to invite ethnic minority women from the classes of 1993 and 2003, and many were invited. However, many did not respond, some declined and one canceled. For the record, 10.2 percent of the women in the OSB classes of 1993 and 2003 identify themselves as being a member of an ethnic minority. Incidentally, Sharnel Mesirow (pictured on the cover, lower left, and inside) is from Sri Lanka.
A Non-hostile Approach Works
I was pleased to read the recent article "The Ethics of Unbundling." I have a "non-hostile family law practice" and have been offering limited legal services for four years in Bend. I wanted to practice family law but disliked the traditional model because of all the conflict. My clients are drawn to my practice because I do not litigate and offer alternatives to go through the divorce process. Most clients have a sense of their property and can understand division. We have great resources here in Deschutes County, including a mandatory Divorcing Parents Seminar that focuses on how difficult it is for the children to go through a hostile divorce and (to have) parents who can’t deal with one another. We also have a county mediator who will meet with moms and dads regarding overnights.
I really enjoy family law because I am helping families in distress. I charge a flat fee and limit the number of hours that I will work under that flat fee. Payment is made in advance so that I never am chasing clients for unpaid legal fees. Most people do not have the extra funds to spend on a lot of attorney fees.
The author made reference to limited legal services being helpful to the middle- and lower-income clients. I have several wealthy clients that choose the limited legal services approach. These clients may have been through a nasty divorce already, or they are smart enough to divide the property themselves and want to remain friendly.
In the end, as an attorney, I’m helping families instead of helping to rip them apart. Obviously, this model doesn’t work with all divorce clients, but I’m finding a majority of clients want this non-hostile approach.
A Biased View of Punitives
I am a California lawyer who for the past decade has spent a substantial portion of my time litigating cases against Philip Morris and other tobacco companies throughout the nation. These have included cases in both California and Washington in which Philip Morris’ actions were defended by the law firm of Munger, Tolles & Olson. Recently, related to my interest in tobacco issues, I was forwarded a copy of your article, "Smoke Signals" (June 2007), which, in part, was about the Philip Morris v. Williams case recently decided by the U.S. Supreme Court. I must admit that I was quite surprised when I realized that this article was written by members of a law firm that actively represents Philip Morris, especially when the Williams case is currently pending before the Oregon Supreme Court.
Substantively, "Smoke Signals" gives, in my opinion, a quite biased view of the role of punitive damages in general and the U.S. Supreme Court’s Williams decision in particular. It refers to punitive damages as being "so popular" among legislators and serving "popular social purposes" that there are "relatively few checks on their amount or the reasons for their use." Having been the counsel of record on behalf of amicus curiae, the American Association for Justice, in the Williams case, I reviewed quite a number of state statutes and this bald assertion is simply incorrect. Indeed, while only a small minority of states have promulgated specific statutes entitling the state to actually receive a portion of punitive damages, Oregon is one of them. The Oregon statutes governing the "use" and "amount" of punitive damages (ORS 31.725-.740, inter alia) put the lie to the assertion of the Munger, Tolles & Olson attorneys. In addition, their position that the Williams decision pointed out a "procedural defect in the Oregon system" in my view is an inaccurate reading of that decision, but one which does represent the position of Munger, Tolles & Olson’s client, Philip Morris. It was not a systemic Oregon "procedural defect" which the U.S. Supreme Court spoke about but rather a rejected but defective instruction proposed by Philip Morris at trial. And the Supreme Court didn’t "strike down" the award as that phrase would normally be understood but rather it asked for clarification from the Oregon Supreme Court as to whether and to what extent the award was based upon constitutionally permissible reasons.
More to the point, however, is the failure of the Munger, Tolles & Olson attorneys to identify themselves as having represented Philip Morris to be a major client of their law firm (although they did point out their credentials as former U.S. Supreme Court law clerks). While this fact was mentioned in your July 2007 Bulletin under "Clarifications" at page 6, I find your explanation that they did not personally represent Philip Morris irrelevant. As members of a law firm which as a whole benefits handsomely from the reputed generous treatment given by Philip Morris to those attorneys willing to represent them, at minimum this should have been disclosed.
Gerson H. Smoger,
Jeff Bleich responds: While we appreciate criticism, we disagree that our article was somehow biased to favor Philip Morris. On the contrary, the views expressed in our articles are our own, and do not reflect that of other members of our firm or its clients. Unlike the writer, we do not represent parties in the Williams case, nor have we litigated issues addressed in that case. Instead, the article expressed only our objective impressions, which do not seem to us to favor either party. We would disclose (and have disclosed) if we were personally involved in the subject of an article. On the merits, we frankly don’t find anything controversial in our statement that some people believe certain punitive damages laws lack adequate limits; indeed, decades of litigation prove this point. Likewise, while the writer might have used other words to describe these things, the U.S. Supreme Court did in fact reverse the Williams decision on procedural grounds, and expressly invalidated an Oregon jury instruction that the respondents had sought to uphold.