AVOIDING MALPRACTICE UNDER THE NEW DUI LAW

By Stephen Hayne

1. AVOIDING MALPRACTICE UNDER THE NEW LAW: AN IMPOSSIBLE DREAM?
   

   By now you have gained an appreciation for the malpractice minefield the new law has created. Without question, the legislature has raised the stakes dramatically for lawyers defending accused drunk drivers. Even on a first offense, the potential consequences are long-range and pervasive; “probationary” licenses, mandatory jail, increased fines and assessments, license suspensions, high risk insurance and mandatory conditions of probation. In fact, a person contemplating a life of crime would be better off specializing in commercial burglary, prescription forgery, car theft, fencing stolen property or possessing heroin, all of which can carry less punitive consequences than does even a first offense of DUI. (See Sentencing Guidelines Commission Implementation Manual, 1994).

   And, on a second offense, the accused’s life could change so dramatically that he or she might be better served by a good travel agent than a competent attorney. While the law is a veritable gold mine of motions; its filing deadlines, complexity and increased penalties present daunting challenges to the practitioner. In short, any lawyer considering handling DUI cases after July 1, 1994 would be well-advised to hunker down for a long, hard fight (and to keep his or her malpractice premiums paid on time).

   The malpractice “standard of care” for attorneys in Washington can be found in the case of Strangland v. Brock, 109 Wn.2d 675, 747, P.2d 464 (1987):

   In Washington, the standard of care to which a lawyers is held in performing professional services is that degree of care, skill, diligence and knowledge commonly possessed and exercised by a reasonable, careful and prudent lawyer in the practice of law in this jurisdiction. (At page 682).

   The “standard of practice” will obviously change over time as the complexities of this new bill are sorted out in the courts, but one thing is clear: it will be impossible for the “casual” practitioner to maintain pace with that standard for very long.

   On the other hand, we can all take some solace from the holding in Halvorsen v. Ferguson, 47 Wn.App. 708, 735 P.2d 675 (1986) in which the court discussed an attorney’s obligation to the client in dealing with an “unsettled” area of law. In that case, the court noted the well-established elements of a legal malpractice claim, in which the plaintiff must show:

   (a) The existence of an attorney-client relationship; (b) The existence of a duty on the part of the lawyer; (c) Failure to perform the duty; and (d) The negligence of the lawyer must have been a proximate cause of the damage to the client. (At page 711).

   In Halvorsen, the plaintiff was suing a law firm for failing to adequately advance and argue a legal theory, the precise nature of which, the court observed, “both appellant and her expert witnesses have great difficulty in articulating.” The court noted the long-standing rule that:

   In general, mere errors in judgment or in trial tactics do not subject an attorney to liability for legal malpractice. See Cook, Flanagan & Berst v. Clausing, 73 Wn.2d. 393, 428 P.2d. 865 (1986) at 394; cf. Hansen v. Wightman, 14 Wn.App. 78, 100-01, 538 P.2d. 1238 (1975) (attorney not negligent when he accepts as correct interpretation of the law a decision of the highest court of his state or when he exercises judgment in a matter of doubtful construction). This rule has found virtual universal acceptance when the error involves an uncertain, unsettled, or debatable proposition of law. (At 717, emphasis added).

   Thus, until the uncertainty is resolved, our exposure is probably limited, except in departures from the basic competence currently required. However, one thing is clear, this bill will ultimately serve to separate the women from the girls and the men from the boys, especially as more and more of those arrested already possess “probationary licenses”, or have either present or prior deferred prosecutions, or refuse the breath test, or are under 21, or, heaven forbid, have prior convictions.

   For example, at the present rate of arrests (approximately 45, 000 per year), three years from now as many as 135,000 drivers in the state of Washington will be driving on “probationary” or suspended licenses, regardless of whether they have been convicted or not! Thus, the attorney’s initial contact with the client becomes ever more critical, whether it be at 2 a.m. on the night of arrest, four days and 23 hours later, or any time thereafter.

   Would you know what advice to give, what deadlines exist, what pleadings to draft, what motions to file, what special jury instructions you’ll need and what fees to charge in the following cases:

   1. Client calls from police station at 2 a.m. He’s performed the field sobriety tests and taken a PBT (result: .131 “and climbing” per arresting officer). He’s being asked to submit to a DataMaster test. Should he:
      What if:
      1. He sounds intoxicated and will probably blow over a .15?
      2. He sounds sober and will probably blow under a .15?
      3. His license is currently suspended?
      4. His license is suspended, but he’s eligible for reinstatement?
      5. His license is suspended, but not for a prior DUI?
      6. He has a prior over 5 years ago?
      7. He has a prior within the past 5 years?
      8. He has a prior but isn’t sure whether it’s within the past 5 years?
      9. He has a prior in another state?
      10. He’s on Deferred Prosecution?
      11. He completed a Deferred Prosecution within the past 5 years?
      12. He completed a Deferred Prosecution over 5 years ago?
      13. He has a prior refusal?
      14. He’s under 21?
      15. He already has a probationary license?
      16. The officer intends to release him after the breath test?
      17. The officer intends to book him into jail after the breath test?
      
      
   2. The client calls for the first time on Tuesday after a 3-day weekend and advises she was arrested for DUI last Friday night (4 days ago). She blew a .14 and .17 on the breath test. He photo license was seized and she was given a 30 day temporary license. She has no prior offenses.
      1. What advice must you give immediately?
      2. Assume you’re out of the office all day, what advice, if any, does your staff give her?
      3. Are they practicing law without a license?
      4. Does an attorney/client relationship now exist?
      5. Are you committing malpractice if you or your staff don’t give advice on the 5-day “probationary” license appeal deadline?
      6. If she’s not so advised, what are you going to tell her during your initial consultation on the sixth day after arrest and you discover the arrest was probably unlawful? Or the breath test doesn’t comply with the WAC’s?
      
      
   3. You meet with the client for the first time six days after arrest. He shows you a breath test evidence ticket with .17/.17 results and a 14 minute observation time. The client tells you his story, adding some of the facts set out in example (1) above (c-o).
      1. What advice to you give?
      2. What motions do you file?
      3. How long do you have to file them?
      4. What correspondence do you initiate with the Department of Licensing?
      5. What if the evidence ticket complies with the WAC, does your advice change?
      6. Will you need a defense expert?
      7. Where will you find one?
      8. What discovery issues exist?
      9. Are you willing to take the case to trial? (If not, refer it out immediately!)
      10. How long will the trial last?
      11. What special jury instructions will you need?
      12. What charging issues exist?
      13. What penalty issues exist?
      14. What constitutional issues exist?
      15. How much should you charge?
   
   

   Now ask yourself: If I don’t know the answers to all of the above questions, am I in violation of RPC 1.1?:

   A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. (emphasis added).

   I don’t know if it appears as obvious to others as it does to me, but clearly the only way a lawyer could hope to comply with RPC 1.1 is by having (1) a thorough familiarity with the new law, (2) knowledge of the various motions necessary to challenge it, (3) the knowledge required to adequately preserve the client’s rights, both before the DOL and the court, (4) how individual prosecutors and judges are, (6) which motions are working where and under what circumstances, and (7) finally and above all, a willingness to fight the prosecution up to and including trial of the case to a jury. Any lawyer offering a client less is not only violating RPC 1.1, but is also committing malpractice.

   To me, that sounds an awful lot like “specializing”. Whether it is or not, there is no question that the casual practitioner will soon be left in the dust as the standard of practice accelerates ever higher and faster in the future. On the other hand, this new law presents astounding opportunities for those willing to put in the time and effort necessary to become its masters.

   
   
2. A WORD ON ABUSE OF DEFERRED PROSECUTION.

   Considering the obvious extreme consequences of conviction, the temptation to steer clients towards Deferred Prosecution will be even greater under the new law. However, a word of caution to those lawyers who would knowingly counsel a non-alcoholic client to give false information to the evaluator in the hopes of using Deferred as a means to avoid conviction. Not only is such conduct unethical, it also increases the lawyer’s exposure to a later malpractice claim should the client fail in treatment due to his own lack of commitment. Under RPC 3.3 (Candor Toward the Tribunal):

   A lawyer shall not knowingly: (1) make a false statement of material fact or law to a tribunal; (2) fail to disclose a material fact to a tribunal when disclosure is Necessary to avoid assisting a criminal or fraudulent act by the client unless such Disclosure is prohibited by rule 1.6.

   In addition, RPC 8.4 defines “misconduct” as follows:

   (c) To engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

   Obviously, the practice of participating with the client in acquiring a bogus SPII evaluation based upon false information appears to violate both RPC’s. What if the client then violates treatment conditions, faces revocation and decides to blame the lawyer for pushing him into a treatment program he didn’t need? Is it wise to risk your license simply to avoid the (admittedly much more difficult) task of properly defending a client?

   While on the subject, I must make an obvious point: Should the defense bar continue to abuse Deferred Prosecution by directly or indirectly counseling non-alcoholic clients to seek treatment, the results will be inevitable: Deferred Prosecution will be repealed. Once that happens, where will those lawyers find refuge? The reality is, only those fighting zealously and tirelessly for their client’s basic rights every day will be able to continue on. I’m certainly not discouraging appropriate use of Deferred Prosecution. I simply hope we’re smart and courageous enough not to destroy it out of fear of the unknown. Frankly, based on the past performance of many defense lawyers, I fear we’re not.

3. FEES: WHAT IT’S GOING TO TAKE TO COMPETE.
   
   

   Since its enactment, I have heard the new DUI bill variously described as a “defense lawyer’s gold mine”, a “lawyer’s relief act”, and “the 1994 defense lawyer’s full employment bill”. To be sure, the seriousness and sheer complexity of the law provide abundant opportunities for increased income. But one thing must be kept foremost in mind (as the other speakers have made clear): defending these cases is going to be much more difficult, complicated and time-consuming, period. In other words, you may rest assured that any increase in income will be well-earned.

   The fact is, any lawyer who keeps his or her retainer fees at the same level as under the old law will probably be in bankruptcy court before a year is out. This new law is so complex that the days of the $1,000 to $2,000 DUI defense are over (and well they should be). In fact, Washington attorneys have been undercharging for DUI’s for years, in part due to the very gradual change in enforcement philosophy.

   Back in the 70’s, most cases could be settled with a phone call and one court appearance – usually with no serious consequences to the client. In the late 70’s and early 80’s, things began to change. Physical Control was eliminated as a “lesser included”, the breath test “presumption” changed to a “per se” violation, minimum jail terms were added as were mandatory license suspensions and high risk insurance requirements. Fees gradually rose, but the average charged by the “expert: still hovered between $1,500 and $2,500.

   Then came the BAC Verifier DataMaster in 1985, and along with it numerous difficult, complex and expensive issues. As those issues worked their way through District court hearings and up through the Appellate Courts, DUI cases became ever more complicated. In the late 80’s and early 90’s cam a string of adverse Supreme Court decisions (Brayman, Franco, Ford, Straka, etc.) Those decisions along with the change from “blood to “breath” alcohol concentration and the “two-hour rule”, made defending DUI’s harder than ever. And fees naturally began to rise.

   All the while, the public was continually influenced with ads and commercials denouncing not drunk driving, but drinking and driving. Under this onslaught of publicity, the hearts and minds of many judges and most jurors moved inexorably toward a prosecution bias. Anyone who tried DUI’s in the 70’s or 80’s can attest to the difference in judge’s and juror’s attitudes then and now.

   All these changes have culminated in a new law which presents DUI defense lawyers with enormous new challenges. I can honestly say that few of the Class A felony cases I handled in years past were as complex and difficult as today’s run-of-the-mill DUI (even before July 1, 1994!)

   The lesson we all must learn is clear; the only way to copy with these increased demands is to be paid enough to do the job right. It may seem astonishing, but respected lawyers in other jurisdictions; from Georgia to South Carolina to Minnesota to California to Alabama to Oregon, charge average retainer fees in excess of $5,000 on a first offense (usually not including a trial fee). In fact, the top lawyers in most major cities around the country charge retainers form $6,000 to $9,000! Whether those fees are justified may seem debatable, but one thing isn’t: the laws in those states are not nearly as complex and punitive as ours under the Omnibus Drunk Diving Act of 1994.

   The bottom line is that fees must go up along with the level of complexity and punishment imposed by the law. Without charging a reasonable amount, no lawyer will be able to keep up with the standard of practice of those who do. And more importantly, no lawyers will be able to serve his or her clients adequately for fees based on the fantasy of a quick-and-easy plea bargain.

   There is however, a silver lining to this dark cloud. By charging more per case, you can take fewer cases. By taking fewer cases, you can do a better job of presenting a defense. By doing a better job, you can force the system to provide fundamental fairness and basic due process for your client. After all, isn’t that what we’re here for?