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

May 18, 1999

Certified Mail, Return Receipt Requested

Board of Governors, Wash. St. Bar Assoc.
c/o M. Janice Michels, Executive Director
2101 - 4th Ave., 4th Floor
Seattle, WA 98121-2330

Re:   BOG Supervision of Functioning of Review Committees per RLD 2.2(a)(1)
Dear Board of Governors Members:

        Please exercise your authority under Rules for Lawyer Discipline ("RLD") 2.2(a)(1) to correct a misunderstanding by the members of Review Committee III as to its authority and responsibility under RLD 2.4(d)(1). The former provision expresses the authority of the Board of Governors ("BOG") to "[s]upervise the general functioning of the Disciplinary Board, review committees, [etc.]." The latter provision describes the authority and responsibility of review committees to review disciplinary counsel reports of investigations of alleged acts of lawyer misconduct and from that review either (1) to order a hearing on the alleged misconduct, (2) to dismiss the matter, or (3) to issue an admonition or advisory letter.

        By letter [Exhibit 1] to me dated April 28, 1999, Patrick Sheldon, Chair of Review Committee III, stated that his Committee lacked authority to separately consider and dismiss any individual allegation of misconduct from an investigative report if they found that at least one allegation in the report warrants ordering a hearing. His letter responded to my letter [Exhibit 2] dated April 16, 1999 to the Committee requesting its separate consideration of whether dismissal might be the appropriate disposition on Allegation #2 and Allegation #3 from a report by disciplinary counsel alleging three separate acts of misconduct by me. The Committee by notice dated April 13, 1999 [Exhibit 3] had ordered a hearing on "the grievance," without separately addressing the three different alleged acts of misconduct. I do not dispute the order for a hearing on Allegation #1, but I believe that the Committee has a duty--that it failed to fulfill--to separately consider whether the degree of evidence found by disciplinary counsel supporting Allegations #2 and #3 warrants a hearing rather than a dismissal of those allegations of misconduct.

        The function of a review committee is to independently and objectively review the evidence upon which disciplinary counsel has made a prosecutorial decision concerning a lawyer's alleged act of misconduct. If disciplinary counsel has dismissed an allegation of misconduct and the grievant objects to that dismissal under RLD 2.9(a)(2), the review committee nonetheless may order a hearing on the matter or issue an admonition or advisory letter. RLD 2.4(d)(4). If disciplinary counsel has recommended discipline against a lawyer for an alleged act, the review committee nonetheless may dismiss the matter or issue an admonition or advisory letter. RLD 2.4(d)(1). The review committee protects the disciplinary system from excessive prosecutorial laxity as well as excessive prosecutorial zeal by disciplinary counsel, both of which are implicitly recognized by the rules as entirely possible. RLD 12.11(a) further recognizes that disciplinary counsel might even sometimes act in bad faith, in which case not only disciplinary counsel but the Association and its officers and other agents might incur liability to a person harmed thereby. The review of each prosecutorial decision by a review committee protects disciplinary counsel, the Association, respondent lawyers, and the integrity of the disciplinary system.

        A review committee's review of each proposed prosecutorial action by disciplinary counsel is an important safeguard against prosecutorial misconduct. A review committee abdicates its responsibility if it fails--whenever disciplinary counsel has "packaged" under a single disciplinary case file number at least one misconduct allegation for which sufficient evidence to proceed to a hearing if found--to carefully review the evidence supporting each single alleged act for which disciplinary intends to charge a lawyer for misconduct.

        The position reflected in Mr. Sheldon's letter appears to be based upon the imprecise wording of RLD 2.4(d)(1), in which a review committee's express authority to "dismiss the matter" could be interpreted as referring either (1) to an entire disciplinary case under a single file number, that often includes multiple allegations of misconduct, or (2) to any single alleged act of misconduct. Similar imprecise wording lies in RLD 2.4(d)(4), granting review committees authority to "[r]econsider grievances dismissed by disciplinary counsel," for the word "grievance" is not expressly defined in the RLDs and often is used informally as referring to a disciplinary case file rather than to a single act of misconduct. I believe that the interpretation of both "matter" and "grievance" as referring to each single alleged act of misconduct is more consistent both with other RLD provisions and with public policy considerations.

        RLD 2.9(a) lists the rights of a grievant, described there as a person "alleging an act of misconduct by a lawyer," [emphasis added] including the right, under subsection (a)(2), to "[r]equest reconsideration by a review committee of a dismissal of the grievance by disciplinary counsel," [emphasis added] and to request further review by the disciplinary board "of a dismissal of the grievance by a review committee." The board's authority, under RLD 2.3(f)(6), in the event of such a request is to "[r]eview the decision of a review committee dismissing allegations of misconduct by a lawyer" and "upon such review order a hearing on the alleged misconduct" or "dismiss the matter" [emphasis added] or take other actions. These RLD provisions, when read together, indicate that the terms "grievance" and "matter" refer to each single alleged act of misconduct by a lawyer.

        Public policy considerations also lead to such an interpretation. The range of sanctions provided in RLD 5.1 indicates that acts of lawyer misconduct range from minor to very serious. If a grievant alleges against a lawyer both a minor and a very serious act of misconduct, and if disciplinary counsel then dismisses the very serious allegation but not the minor one, the grievant is afforded no right to seek reconsideration of the dismissal of the very serious allegation if "grievance" is interpreted as meaning the collection of all allegations in a disciplinary case file, for the "grievance" would not have been dismissed. The result, however, would be contrary to the clear policy of RLD 2.9(a)(2) that grievants should be able to seek higher levels of review when they believe their complaints about a lawyer's alleged misconduct have not been adequately considered.

        Similarly, if a lawyer is accused of both a minor and a very serious act of misconduct, and if the evidence supports disciplinary charges only for the minor act but not the very serious act, then one of the policies underlying review committees' existence--that an objective review of prosecutorial decisions guards against excessive prosecutorial zeal and charges brought in bad faith--if a review committee declines to require evidence supporting the very serious allegation merely upon finding that evidence supports the minor allegation. Such abdication by a review committee of their reviewing function sets the stage for disciplinary counsel to abuse the disciplinary system by "piling on" multiple unsupported misconduct charges to overwhelm, intimidate, and falsely publicly malign their adversary, the respondent lawyer, in the disciplinary proceeding.

        I do believe that Allegations #2 and #3 of the disciplinary case against me referenced in the enclosed exhibits were brought by disciplinary counsel in bad faith without evidence even approximating the requisite "clear preponderance" threshold that will be required to support misconduct charges. I do believe that disciplinary counsel and his superiors are acting maliciously against me due to my very vocal public criticism, to the legislature and the media, of their office for ineffectively investigating my report of serious lawyer misconduct by Pierce County Superior Court Judge Grant L. Anderson that I filed in early 1996. I have good, documented reasons for these beliefs.

        I am not asking the Board of Governors to violate RLD 2.2(b) by reviewing any decision on the merits of my case by Review Committee III or by disciplinary counsel. I am asking the Board of Governors to exercise its authority under RLD 2.2(a)(1) to supervise the general functioning of the Bar's disciplinary system, including its review committees, by considering whether a review committee's function requires it to review the evidence supporting each separate misconduct allegation for which disciplinary counsel is recommending formal charges. If the Board of Governors agrees with my analysis of a review committee's function, I ask that the Board direct Review Committee III to fulfill its function in the disciplinary case referenced in Mr. Sheldon's letter and the other enclosed exhibits.

        If the Board of Governors declines to address this disciplinary system structural matter, please notify me promptly so that I may petition the Supreme Court of Washington to address the matter as the authority ultimately responsible for the administration of the state's lawyer disciplinary system. Thank you for your consideration of this request.
 

Very truly yours,
 
 

Douglas A. Schafer

Enclosures

cc: Charles K. Wiggins, Disciplinary Board Chair
      M. Wayne Blair, WSBA President
      Timothy L. Leachman, Disciplinary Counsel