Letters
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Lawyers' Independent Professional
Judgment Must Be Inviolate
We strongly disagree with the views expressed by President Bakke on the
concept of multidisciplinary practices (MDPs). Our disagreement is firmly
based in our belief that we, as a profession, must avoid all situations
that have the potential to compromise our independent professional judgment.
Our attorney's oath and our ethical code dictate that we are to place
the interests of society and our clients first, above our own self-interests.
The counsel and representation we give to our clients is constrained by
our ethical code and applicable law. We are officers of the court 24 hours
a day. The rules that govern our conduct force us to act as a true "profession"
first and a "business" second. The MDP proposal, as it presently exists
and taken to its logical conclusion, would reduce our profession to nothing
more than a "business."
The financial services sector - which includes accountants, bankers,
brokerage houses, and insurance companies - has done a good job of convincing
a number of lawyers, including President Bakke, that the legal profession
cannot survive as a business without subscribing to the MDP plan. We believe
we can survive only if we continue to adhere to the core values that make
us a true profession as embodied in our Rules of Professional Conduct
and summarized in the Preamble to the same. We do not want to see our
profession in the same legal, ethical, and financial entanglement as the
medical profession presently finds itself. One need only read the U.S.
Supreme Court's decision in Pegram v. Hendrich, 530 U.S. 211 (2000), to
see that physicians are constantly tempted to compromise their independent
professional judgment and elevate their own financial interests over those
of their patients by cost-cutting incentives built into HMO plans which
they own.
We believe the State Bar of Wisconsin and President Bakke's efforts
would be better spent educating the members of the Bar and the public
on what it means to be a true professional. We could do a much better
job of instructing the public on the ethical constraints that we must
work under and the reasons for those ethical constraints. One of the principal
reasons for them is that we must retain our independent professional judgment
if we are to improve the delivery of legal services to the public as a
whole and retain the confidence and loyalty of our clients. Our conflict
of interest rules are specifically designed to try to ensure that we exercise
our independent professional judgment solely in the best interests of
our clients.
What of the effect of changing SCR 20:5.4 "Professional Independence"
so as to permit MDPs: How could we exercise our independent professional
judgment by expressing the opinions contained in this letter without fear
of being fired if our firm was owned in whole or in part by a financial
services provider?
Anderson, Shannon,
O'Brien, Rice & Bertz, Stevens Point
Justice System Perpetuates Language Barriers in Court
My wife and I both serve as interpreters for the court and police in
Manitowoc County. We have a lot of experience with different populations
and circumstances. I have been a Peace Corps volunteer in Central America;
I've lived in Puerto Rico; and I have been working with the Latino population
in Wisconsin (primarily Mexican-American) for more than 25 years. Ms.
Molvig's February article, "Overcoming Language Barriers in Court," is
excellent, and I agree with almost everything that she brings out in it.
Being an interpreter during court proceedings is very difficult. There
are times when we are called upon to translate things that are difficult
linguistically and conceptually. An interpreter may feel that, despite
the difficulty in translating the legal jargon used in court, one can
skillfully and accurately translate what is being said. However, you know
that the client will not understand what you say. He or she simply has
no understanding of the proceedings or the concepts being dealt with.
Getting to some basic concepts is difficult and often forces interpreters
to skip several important steps in the interpretive process, leaving a
void in the overall understanding that your client may have of what is
really happening. I am very uncomfortable with this. It is a dangerous
thing to permit to happen, but I often feel that this is what interpreters
are left with.
The intimation in Ms. Molvig's article is that better preparation of
interpreters is the answer to the conceptual barriers in the courtroom.
I believe this is laying too much at the door of interpreters. It also
may be expecting too much of the client. Many clients come from countries
where the basic presumption of innocence until proven guilty does not
exist. Most Americans grow up with at least a "Perry Mason" exposure to
law and court proceedings, or learn some of this in civics classes.
I find with Spanish-speaking clients that in dealing with legal concepts,
at least as practiced in America, I receive many blank stares and even
looks of fright. I don't think anyone should be surprised when a short
question in English might cause a long exchange in Spanish, finally culminating
in a "yes" or "no" answer. Often the interpreter is responding to the
client's confusion and trying not only to translate from Spanish to English
or vice versa, but from "lawyer" to "people" language, and vice versa.
I often try to inform the judge when that is happening, but it's easy
to gloss over.
I believe that when courts and others are working in two different languages,
we have to slow down and get really simple. Do things in small chunks,
especially in trials. Some judges and lawyers are excellent at this, but
many are not. Lawyers should avoid phrasing long and complex questions
that can make it impossible for an interpreter to work. For such long
sentences, paragraphs, and volumes, most courtrooms have neither the skilled
simultaneous translators nor the equipment needed for simultaneous translating.
To listen, translate, and speak at the same time is almost impossible
without constant practice and the proper equipment. Just listen to someone
talk sometime and, in a long paragraph or speech, try to say exactly the
same thing the speaker is saying. Yet, in many courtrooms this skill is
implicitly expected. Even if such equipment and skill were available,
the expense might approach that of a lawyer's time.
By all means, insist on basic standards for interpreters, but there
is more to be done. Judges need to establish courtroom procedures to allow
for the proper use of interpreters and that permit interpreters to perform
their jobs and only their jobs. Interpreters should not be in the position
of having to do the judge's job of explaining or trying to slow the proceedings.
Interpreters should not be in the position of having to do the lawyer's
job of explaining strategy or giving advice.
This interpreter wants to be able to translate everything that is of
importance to the client in the courtroom. The justice system needs to
structure things in order for me and other interpreters to do that. These
should happen through the conscious actions of attorneys and judges.
Bob Forster,
Manitowoc County
More Public Records Should
Be Online
In their February article entitled "Carnivores, Cyber Spies & The Law"
attorneys McCrystal, Gleisner, and Kuborn caution that there is a danger
in placing public records online because "the power of information can
be used for good or ill, fairly or abusively."
The greater danger would be to prevent cheaper, faster public access
to public records by keeping them off the Internet - in which case only
those with the time, money, and physical ability to do so could access
public records.
Information is knowledge, and knowledge is power. By making information
available to so many more people, the Internet acts as a great leveler,
a great democratizer. The power of access to public records should not
be reserved to lawyers, the media, or retired people who have the time
and money to comply with the law as it is.
The answer to any "misuse" of information (if there is such a thing)
is more information - not a limitation on public access. The first step
for the legal system is to apply the open records law to itself. (Unfortunately,
our state supreme court refuses to apply the law to its own boards and
commissions.) Then, put this public information online so it is available
to everyone, not just the privileged few.
Steven Levine,
Madison
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