As a practicing attorney in another state, I can tell you that I don't
know of an instance where a client seeking another opinion was ever
disparaged or even questioned by the first attorney. Don't worry about
it in the least. Indeed, the Washington Rules of Professional Conduct,
specifically Rule 1.2, states that "a lawyer shall abide by a client's
decisions concerning the objectives of representation . . . and shall
consult with the client as to the means by which they are to be
pursued." Although the Rules don't directly state anything about
second opinions, the tenor of the Rules is that the client's wishes
must be respected, so long as those wishes are not themselves in
violation of the Rules.
As a general matter of law - I agree with you. A prior holding of a
superior court is generally binding upon lower courts. That concept is
referred to as "Stare Decisis" (Star-ay De-sise-is) and is a latin
term defined as: "to stand by that which is decided." The principal
that the precedent decisions are to be followed by the courts. To
abide or adhere to decided cases. It is a general maxim that when a
point has been settled by decision, it forms a precedent which is not
afterwards to be departed from. The doctrine of stare decisis is not
always to be relied upon, for the courts find it necessary to overrule
cases which have been hastily decided, or contrary to principle. Many
hundreds of such overruled cases may be found in the American and
English books of reports. http://www.lectlaw.com/def2/s065.htm
But what I love about the law: for every rule there are 15 exceptions.
Prior holdings of a state's supreme court are almost always good - but
how narrow was that court's holding? Does it stand on "all four legs"
with the facts and law of your case (are the cases "factually
Rulings by the state's courts of appeal may only be precedential on a
much more limited ground - indeed, in some states, one regional court
of appeal may disagree with another court of appeal.
BUT, even if the ruling of the earlier court is not precedential under
stare decisis, it should certainly be "persuasive authority" - indeed,
law from other states can be "persuasive authority" if the Washington
supreme court has not decided a particular area of law.
I wouldn't hide the fact that you are seeking a second opinion from
your counsel - we can always "respectfully disagree."
This issue is generally pretty basic though; not the sort of thing
that any member of the bar is going to get wrong. You may want to have
your attorney give you a memo arguing why the earlier court's opinion
is not binding upon the court hearing your case. What is the
applicable law? How was that law developed? Is it statutory or
developed by court opinion? Was it a Washington opinion or the opinion
of another state court that was adopted by Washington?
But don't worry about the etiquette - you will be fine. You need to be
satisfied as to how the system works, what the relevant law is, and
how it is going to be applied to the unique facts of your case, be it
civil or criminal. Anything less than that and our system of justice
has short-changed you.
Any follow-up or questions? Hit the CLARIFICATION key!
washington rules of professional conduct
Clarification of Answer by
24 Jul 2006 11:17 PDT
Thanks for the follow-up; I want to make sure that you get what you need!
"Statutory" merely means of a statute - of a law. The "Washington
Revised Code" is your organic law - the constitution and the laws
passed by the legislature and signed by your governor. In addition, as
it pertains to the practice of the courts in Washington, you have the
Rules of Court which specify, in fine detail, what the exact
procedures that must be followed in any of the courts, all through the
Washington Supreme Court. This site allows you to search those
Statutes trump court opinions so long as the statute itself is
constitutional. Court opinions interpret statutes and constitutional
provisions. If the legislature doesn't like a court opinion, they can
nullify it by passing a new statute or amending an old one.
Court rules are just that - rules of the court (think of Robert's
Rules of Order.)
Let me give you an example: You have probably heard of "squatters'
rights" where someone moves onto the land of another, lives there for
so many years, and then the ownership transfers to the squatter and
out of the hands of the true owner by operation of law. This is also
referred to as "adverse possession of real property."
The Washington Code no doubt provides that this doctrine can be
applied in Washington, and will state a "statute of limitation" - i.e.
how many years does someone have to live on the land of another before
he or she can claim it. But the statute probably doesn't give much
detail beyond that.
Court cases, however, do provide that detail of exactly what someone
has to do to claim the land of another. For example, the occupancy on
the land would have to be hostile, exclusive, open and notorious,
actual, and continuous. Further, the court case will explain what
each of those terms mean, and how the principle is applied to the
facts of a case.
The Court Rules will specify which courts have jurisdiction to hear
such cases, where it must be heard (venue), and what procedures will
be followed in the case, how the lawsuit must be filed, etc.
The constitution, statutes, and court rules will specify appeal rights
in such a case.
It's a bit of a cobweb, isn't it?
Don't hesitate to ask for clarification again.