Schafer Law Firm
Washington Building, Suite 1302
1019 Pacific Avenue
P.O. Box 1134
Tacoma, Washington 98401-1134
(253) 383-2167 (Fax: 572-7220)

January 29, 1998

Representative Larry Sheahan
Chair, House Law & Justice Committee
House of Representatives
P.O. Box 40600
Olympia, WA 98504-0600

            Re:   Bill Creating a Commission for a Study on Maintaining Ethics
                    in the Legal System ("SMELS Commission")

Dear Representative Sheahan:

            Based upon my experiences with and observations of the Commission on Judicial Conduct ("CJC") and the lawyer disciplinary process of the Washington State Bar Association ("WSBA"), and based upon my perception of the public opinion concerning the integrity of the legal system, I suggest that the Legislature authorize and fund a commission to conduct a "Study on Maintaining Ethics in the Legal System" ("SMELS Commission"). The mandate to the SMELS Commission would be to examine the existing organization, procedures, and practices of the CJC and WSBA to identify whether Washington citizens should, and do, have confidence that those organizations adequately protect the public by promptly investigating and appropriately disciplining unethical conduct by lawyers and judicial officers. The SMELS Commission would recommend any changes that might promote the public interest, including, if appropriate, the creation of a new citizen-controlled Commission on Ethics in the Legal System having investigative power and disciplinary authority over both lawyers and judicial officers.

            Particular areas of focus of the SMELS Commission would include:

            (1)    Whether the current practices of the WSBA involving investigation and discipline of lawyers adequately protect the state's public consumers of legal services from unethical lawyers and afford fair treatment to accused lawyers;

            (2)    Whether the current practices of the CJC involving investigation and discipline of judicial officers adequately protect the public from unethical judicial officers, instill public confidence in the integrity of the judicial system, afford fair treatment to accused judicial officers, and are consistent with the CJC's constitutional charter, including its public disclosure provisions (Wash. Const. Art. IV, Sect. 31);

            (3)    Whether the CJC and WSBA do, or should, initially consider and determine whether alleged unethical conduct by a lawyer or judicial officer is protected from sanctions by federal or state constitutions (for example, provisions protecting free speech) before considering whether it violates any ethical rules otherwise applicable to the lawyer or judicial officer;

            (4)    Whether the CJC and WSBA currently cooperate or conflict with one another in their investigations of alleged unethical conduct involving judicial officers and lawyers, and whether investigations of all judicial officers and lawyers should be consolidated within a single organization;

            (5)    Whether the investigation and discipline of lawyers and judicial officers should be controlled by lawyers and judicial officers;

            (6)    At what point in the investigation of alleged unethical conduct by lawyers and judicial officers the public should be afforded access to information, in order for citizens individually to select private lawyers and collectively to elect judicial officers, about allegations of unethical conduct by lawyers and judicial officers, such as upon a finding of any substantial evidence or only upon a finding of evidence beyond any reasonable doubt;

            (7)    Whether fact-finders considering alleged unethical conduct by lawyers and judicial officers should consider all evidence that would be commonly accepted by reasonably prudent persons or should only consider evidence that is admissible under the rules of evidence that apply in criminal or civil court proceedings;

            (8)    What degree of proof of unethical conduct by a lawyer or judicial officer should be required before he or she is subject to public disclosure of, and public discipline for, that conduct, such as upon a finding of substantial evidence, a preponderance of the evidence, a clear preponderance of the evidence, clear and convincing evidence, or evidence beyond any reasonable doubt;

            (9)    Whether the CJC and WSBA are funded and staffed adequately to carry out their mission of promptly investigating and disciplining unethical conduct by lawyers and judicial officers, and the appropriate amount of, and possible sources of, funds for fulfilling that mission either through those existing bodies or any newly created body;

            (10)    Whether officials investigating alleged unethical conduct by lawyers and judicial officers should be required promptly to refer to law enforcement and regulatory officials all information of apparent wrongdoing that reasonably comes within the jurisdiction of those law enforcement and regulatory officials, and to cooperate with those officials;

            (11)    Whether lawyers and judicial officers should be subject to discipline for failing to make a timely report to appropriate disciplinary authorities of information known to them that reasonably indicates another lawyer or judicial officer has committed unethical conduct; and

            (12)    Whether policies do or should exist at WSBA and the CJC, or at any newly created disciplinary body, to ensure that persons involved in the investigation or discipline of lawyers and judicial officers are not subject to inappropriate influence based upon social, financial, or other relationships with individuals under investigation or with any lawyers representing those individuals.

            I would suggest that the SMELS Commission membership include not just lawyers and judges, but political scientists, sociologists, philosophers, current or former politicians, religious leaders, business and labor leaders, media representatives, representatives of minority groups, and, possibly, former staffers from the CJC and WSBA disciplinary staffs.

            I would be glad to provide explanations or documentation supporting each of the areas of focus enumerated above. Thank you for considering this important matter.

Very truly yours,
 
 

Douglas A. Schafer