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DEATH FRETSTWO LAWYERS ARE FIGHTING-- OVER HOW YOU SHOULD DIE

"He is wrong and I am right," the voice says.
"Clearly, I am right and you are wrong, and you surely must know it," comes the reply.

Nyah-nyah-nyah-nyah-nyah! Will they stick out their tongues? Pout or resort to spitballs?

No, these attacks are not squabblings overheard in a schoolyard. Rather, they are the public snipings of two prominent Valley attorneys.

Van O'Steen, Phoenix's most visible personal-injury lawyer, and Scott Ashton-Blair, a Scottsdale trust and estate lawyer, have been trading public barbs pointed enough to ruffle a judge's robes.

Ashton-Blair sneers at O'Steen's practice, saying, "He's kind of a front. He does all the public relations and ads."

"I won't be painted as some type of idiot," O'Steen retorts emphatically. "He's making this stuff up." O'Steen says Ashton-Blair's advice is "dangerous" and "irresponsible."

Accusations of unethical misdeeds and slanderous conduct have been flying from both legal beagles since a joint appearance October 17 on a local radio talk show. And the feud has no end in sight, both parties say. On the day New Times called O'Steen for an interview, Ashton-Blair was being deposed in O'Steen's law office on an unrelated suit Ashton-Blair had filed against a client of one of O'Steen's law partners.

Lost in this word battle is an ethical, medical and legal decision that has some importance, since it involves 15 percent of the adult American public personally: the choice between a medical directive and a living will. Both documents express your wish to have doctors "pull the plug" in the case of a catastrophic illness or accident.

The battle started last July when Ashton-Blair took exception to legal advice contained in the column O'Steen writes once a week for the Arizona Republic, kind of a free office visit for the lawlorn. Ashton-Blair says he went to O'Steen's office to get him to correct what he thought was a mistake, but failed to get satisfaction from one of O'Steen's assistants. O'Steen, incidentally, is the lawyer who gained national prominence by suing his own brotherhood for the right to advertise, a point which becomes rather ironic in view of how this feud developed. Ashton-Blair then went to Channel 10 and convinced its management to air his side on television. This nettled O'Steen. The climax of this battle of the Titans came at a joint appearance on Pat McMahon's talk show on KTAR-AM, where the only thing Ashton-Blair and O'Steen agreed on was that each thought the other was incompetent.

Following the radio fiasco, O'Steen wrote yet another column which angered Ashton-Blair, who took it as a "personal attack" against him. In retaliation, Ashton-Blair tried to take out an ad in the Republic to respond to his nemesis. But the Republic's attorney Terry Mead refused to run the ad without O'Steen's approval because of what Mead said were "false and misleading statements." O'Steen, in a reply not so nice for so strong a supporter of the First Amendment, turned the ad down. The differences between the two boil down to this: Ashton-Blair says living wills are legal loopholes for greedy hospitals; he's promoting medical directives as the "wave of the future." O'Steen says living wills are protected by an explicit state law while medical directives are not, and besides, medical directives are too confusing for clients.

A reading of both documents shows that they use basically the same language, although the medical directive also includes a chart giving specific instructions on how comatose or brain-dead victims want to be treated.

Living wills first appeared as a result of the Karen Ann Quinlan case in 1976. Medical science had reached the stage at which the mentally dead could be kept physically alive, and the Quinlan family fought for the comatose young woman's "right to die."

The medical directive, written this year by the American Medical Association, was spurred by the case of Nancy Beth Cruzan v. Director, Missouri Department of Health. Cruzan was an accident victim who lapsed into a coma in January 1983. The U.S. Supreme Court had decided June 25 that she should be kept on a life-support system, although she had no chance of recovery and her family wanted to let her die. (Cruzan died last week.) The court supported its decision by saying there was no "clear and convincing evidence" that Cruzan had authorized anyone to pull the plug.

That court decision prompted the AMA to develop a legal document that both doctors and the courts could live with. A spokesperson from the AMA's national headquarters in Chicago says the AMA wrote the medical directive after the Cruzan decision, and has scheduled a public-relations blitz for this spring to convince consumers of its superiority. The medical directive, the AMA says, gives a detailed plan outlining what types of life-saving measures a physician should take if the patient is in a coma or vegetative state and no action could successfully bring back "qualitative life." A living will, on the other hand, does not instruct the doctor on any action except to pull the plug.

Ashton-Blair has led the publicity machine for the medical directive among the legal community in Arizona. O'Steen says he doesn't challenge the AMA's intent, but that because the "new mousetrap" isn't written into the state constitution, it could be challenged were a person to be reduced to a vegetative state in, say, a car wreck.

Ironically, both lawyers agree that neither document is legally binding without another document called the "medical power of attorney," which allows relatives to pull the plug for you. Despite that, each lawyer is accusing the other of everything from overweening ego to the profit motive. "Van O'Steen's selling living-will forms in every bookstore in town," Ashton-Blair complains. "Why do you think he's doing it?"

O'Steen is equally suspicious. "If I were to take a cynical view, I might assume you were promoting this new device as a means of attracting prospective new clients to your living-trust law practice," O'Steen countered in a letter to Ashton-Blair.

The truth, as always, may be somewhere in the middle.
Stephen Case is a Sun City trust and estate attorney who recommends living wills. He says, "If I've been run over by a car and the only thing that's keeping my brain waves going on that little screen is some tube, if I've signed either document, they're going to pull the plug."

So whom is the public to believe while these attorneys battle it out?
"Probably, the best to do is ignore them until there's more clarification from the courts," says Harriet Turney, a lawyer for the Arizona Bar Association. "It's like an ad for Tide saying, `We're better than Wisk at cleaning your wash.' In a marketplace, everyone says they've got the best product.

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J. W. Casserly