Letters

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

Wisconsin Lawyer