In the Yashanee Vaughn Case, Protecting the Right to Effective Legal Counsel: Guest Opinion

The decision by Parrish Bennette’s attorneys not to reveal the location of Yashanee Vaughn’s body for more than four months has generated an enormous amount of public scorn (“Lawyers opted to withhold body site,” Jan. 18). Some have even suggested passing legislation requiring disclosure of this type of information in the future. This reaction is understandable; whenever we hear that a family has suffered a tragic and painful loss, our compassion directs us to do whatever possible to alleviate that pain and suffering. But discarding those rights enshrined in the state and federal constitutions is not the answer.

This case brings into sharp focus the tension between a family’s desire to know the fate of its loved one and the constitutional right of the accused to present a defense. Our democracy and system of justice are founded on individual protections – protections that are necessary to promote fairness. Among the most important of those protections is the right to counsel. This right is virtually meaningless unless there is a relationship of trust and confidence between the lawyer and the client. That is why Oregon law mandates that lawyers keep their clients’ secrets. It is also the lawyer’s legal, ethical and professional duty to act solely in the client’s best interest. Any other system seriously impairs the relationship between the lawyer and the client and is contrary to our carefully constructed adversarial system.

Long ago our nation adopted an adversarial justice system to avoid the excesses of government action. We rejected an oppressive system that extracted confessions from the accused and held summary trials without counsel. Our adversarial system grants the state substantial power and resources to investigate and prosecute crimes. It has powerful tools at its disposal, including search warrants, subpoenas and grand juries. The accused, in contrast, faces the might of the state clothed solely in the protections afforded to him by the law, which include the right against self-incrimination and the right to effective assistance of counsel.

I appreciate the compelling nature of the dilemma that Bennette’s lawyers faced, and I also understand the community’s response. The issue, however, is whether the defense should be required to step in to aid the prosecution out of compassion for a grieving family. If a legal system begins to erode the rights of the accused – even out of compassion – we would soon find that we no longer have a fair and functional system of justice.

Importantly, our constitutional rights protect both the innocent and the guilty against the dangers of an inquisitorial legal system that would allow the state to compel the accused to speak. To demand that a lawyer reveal client confidences that are shared for purposes of obtaining legal advice is a back door to the same unlawful result.

The advice that a lawyer provides to a client may mean that a crime goes unsolved or that a victim’s family suffers more pain, but this is the cost of our system of justice – a system that protects all individuals against unchecked excesses of government prosecution.


Lawyers Busting the Glass Ceiling

When Janet Hoffman earned her law degree in the late 1970s, she interviewed for a position with a prominent downtown Portland law firm.

Hoffman, who went on to practice criminal defense law, didn’t make the cut.

“They said at the time they would never have any women litigators,” said Hoffman, who steadfastly refused to name the firm but said it remains a powerhouse law office today. “Since that time, they’ve had many women litigators. Today, no firm would ever say that. But the fact that it could even be said out loud back then says a lot.”

Plenty has changed since Hoffman’s interview. Myriad statistics suggest that women now comprise one-third of all attorneys. Nearly half of all law school graduates are women. And more Oregon women are receiving statewide honors as tops in their field.

For example, more Portland female attorneys than ever placed in the top 50 among Super Lawyers magazine’s list of leading Oregon attorneys. Seven Oregon attorneys, including Hoffman, landed in the top 50 this year. That’s up from five in 2010 and three during both 2009 and 2008.

The list acknowledges attorneys who have earned respect from their peers, meet ethical standards and have achieved documentable standards of excellence.

While the slowly increasing number of Oregon women on the list suggests progress, seven out of 50, or 14 percent, hardly reflects the percent of women in the U.S. population.

The list’s structure may result from a combination of demographics. On the one hand, law office rosters include more females, but on the other hand, the length of their careers to date may be relatively short.

“Most people who end up on that list do so after practicing for a long time,” said Teresa Pearson, a Miller Nash corporate bankruptcy attorney who’s making her second appearance on the Super Lawyers list. “More women have entered the practice of law in the last 20 or 30 years, so there are more who are at that point where they’re recognized for their excellent careers.”

The figures of women in the field overall are expected to rise nationally and locally. Some 47 percent of all first-year law students nationally in 2009 were women. And 51 percent of all judicial clerkships offered to top graduating students in 2009- at federal, state and local levels- were offered to women.

However, women continued to trail their male counterparts in terms of salary. The average male lawyer made $1,934 a week in 2009, according to the Bureau of Labor Statistics. Women attorneys made $1,449, or 74.9 percent of what their male colleagues made. Again, the length of time that most women have practiced could affect those numbers.

Female attorney salaries have jumped by 35 percent since 2002, compared to a 25 percent hike for men during the same period.

Oregon’s female “Super Lawyers” say as they’ve climbed their industry’s ladder, they’ve always had a deep cache of both male and female colleagues.

“There’s definitely been a change since the early ’70s, when women attorneys told me there might only be a couple of other women in their class,” said lane Paulson, of Portland-based Paulson Coletti Trial Attorneys PC. “I graduated in 1987, and our class was 50-50 men and women.

“The more women who are in the profession, clearly, it makes it easier for other women. When I started practicing, I’d go to hearings where I was the only woman in the room. Now, I’ve been in trials where everyone in the courtroom was a woman.”

The 40-year-old Pearson said she seldom faces gender issues.

“It’s pretty rare that I run into any kind of discrimination or issues that arise because of the fact that I’m female,” she said.

Most firms, she said, strive to add diversity to their practices in all forms, including gender mix, racial and ethnic mix and attorneys who are in sexual orientation minorities.

Pearson added that Miller Nash has no “glass ceiling” that prohibits women from becoming partners or assuming other top law firm roles.

“I’ve always felt that people who have done good work have been rewarded regardless of background or gender,” she said. “When you look at our management structure, there are women on our compensation and education committees. I’ve never felt there have been barriers here.”

Still, the National Association of Women Lawyers reports that only 27 percent of the average firm’s non-equity partners (and only 16 percent of equity partners) are women. Paulson might have an explanation. “It’s not because they’re not qualified; a lot of it is they end up leaving the profession for one reason or another,” she said.

Women among Oregon’s top 50 “super lawyers”

  • Courtney Angeli, Buchanan Angeli Altschul & Sullivan LLP.
  • Paula A. Barran, Barran Liebman LLP.
  • Carol J. Bernick, Davis Wright Tremaine LLP.
  • Janet Lee Hoffman, Janet Hoffman & Associates LLC.
  • Jane Paulson, Paulson Coletti Trial Attorneys PC.
  • Teresa H. Pearson, Miller Nash LLP
  • Ruth E. Pekelder, Pekelder Family Law PC

Defending Champ

Comfortable in the courtroom, Hoffman visits the Gus J. Solomon Federal Courthouse on SW Main St.

Cases like Brown v. Board of Education during the Civil Rights Era inspired Janet Hoffman to believe that an attorney, a judge and 12 open-minded jurors could effect great change.

Whether working as a law clerk, a public defender or one of Oregon’s premier criminal defenders, Hoffman has always been fascinated with using the Constitution effectively to protect people’s rights, even those facing sex-abuse allegations and those accused of multimillion-dollar white-collar crimes.

Since opening her criminal-defense practice in 1981, the 56 year-old has become the attorney people call when they find themselves in the biggest trouble of their lives. In one of the most significant white-collar-crime decisions handed down in Port- land’s federal court in the last decade, Hoffman prevailed when representing Flir Systems executive Kenneth Stringer (accused of falsely reporting revenue), proving that the government used “trickery and deceit” in building its case against him, violating Stringer’s rights. In light of her impressive record, it seems counterintuitive to think she’d be slightly superstitious (she won’t talk about Stringer because at press time the case was up for appeal and that might “beshry the luck”). But don’t be fooled—the fate of those she represents is not something Hoffman leaves to chance.

In the words of Multnomah Bar Association President Peter Glade, “When prosecutors face Janet on the other side, they must face the reality that she will not rest until she can get the best that she can for her clients.” And according to Hoffman, that is exactly what keeps her up pacing the floors at night. —SP

What’s the biggest misconception that people have about criminal law?
People will frequently say to me, “How do you feel about defending a rapist?” Or, “How can you handle this person who had child pornography?” And I think the misconception people have is that somehow if you’re guilty, you shouldn’t have a defense. If you start watering down constitutional rights or feeling some crimes are entitled to less-vigorous defense, well, it could be you who gets fewer rights or a less-vigorous defense someday.

How do you create a solid defense?
Quite often a corporation or individual has a story to tell, and if I can see how they saw that reality through their eyes, the defense is there. It’s just taking the time to understand what the human dynamic was that brought them in conflict with the law.

Can you give me an example?
I represented a Vietnamese man who killed a Korean at point-blank range. Our defense was that he’d been raised in the Vietnam War when Korean soldiers came into their village and killed people after displaying their martial arts expertise. So he thought when people got into certain stances, they were experts in the martial arts and that his life was in jeopardy.

Does your approach ever vary?
Sometimes the facts are totally against you, but you have the law there: You realize the police did an unlawful search, or they tricked someone into making a confession; they had bad evidence or a lying informant. In those situations it’s more about what the government did.

Is taking the Fifth Amendment code for “guilty”?
Everyone believes what you just said, but I am a total die-hard advocate that it is extremely important to not talk. The prosecution has the sole burden to prove their case. So you are entitled to be a spectator in that process, and if the government can’t find enough facts to prove the case they’re out of luck, so don’t add to the fact mix.

I’ve heard this work described as running from crisis to crisis.
Yes, you have to be an adrenaline addict.

Is that how you balance being a mother of two, a wife and a lawyer?
Three years ago. Christmas Eve. The kids have gone to sleep, and I get a phone call saying there’s a shooting and the police need me. So I leave my house on the 25th at 1 a.m., and I’m out all night with the police and get home in time for Christmas morning. But I loved that hiatus in the middle of the night, where I was in this milieu of crisis and helping people, and then I loved coming home, and so you balance the two and learn from both.

You must feel like you’ve been able to have it all.
Well, I’ve got wonderful, complicated cases; clients I really want to help; the kind of practice where every day is interesting; and I have adversaries who let me take the time off I need so my kids can say I wasn’t an absentee mother. I have everything but peace of mind. Think about it. You don’t want a lawyer who walks around with total peace of mind. I mean, I wouldn’t be doing my job.