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

July 2, 1999

Charles K. Wiggins, Chair of Disciplinary Bd.
c/o Julie Shankland, Clerk/Counsel
Washington State Bar Association
2101 - 4th Ave., 4th Floor
Seattle, WA 98121-2330

Re:  In re Douglas Schafer, Lawyer, Bar No. 8652
       Request for Reconsideration of Order Denying Hearing Panel Request
Dear Mr. Wiggins:

        As the respondent in this case, I requested, by letter to you of 6/15/99, that this matter be heard by a 3-member hearing panel that includes a nonlawyer, as provided by RLD 2.5(c). On 6/18/99, you signed an order denying that request, stating that in your view there was "no reason" for the hearing to be conducted by a panel having a nonlawyer member because the findings, conclusions, and recommendations from a lawyer hearing officer could later be reviewed by the Disciplinary Board, which itself includes some nonlawyer members. In essence, your reasoning rejects the policy decision that was made in 1982 when the WSBA Disciplinary Board, Board of Governors ("BOG"), and State Supreme Court approved the provisions of the RLDs that have provided for over 16 years for nonlawyer participation on disciplinary hearing panels.

        Your order did not mention that the BOG has failed in recent years to even maintain a list of nonlawyer who are suitable and willing to serve on disciplinary hearing panels, though the BOG has had that duty under RLD 2.5(c) since it took effect in 1/83. Perhaps the fact that you had no BOG-approved list of suitable nonlawyer hearing panel members may have been an unstated factor in your decision to deny my request that you appoint a nonlawyer hearing panel member for my case.

        I was told today by Jan Michels, WSBA Executive Director, that the BOG (perhaps responding to my inquiries) acted at its meeting last week (6/25/99) to correct its oversight by approving a list of nonlawyers who are suitable and willing to serve on disciplinary hearing panels. Implicit in their action, it seems, is their recognition that there are good reasons to have nonlawyers participate on hearing panels (or, at least, their recognition that it looks bad when disciplinary officials themselves ignore the disciplinary rules.)

        I believe that there are good reasons for my case to be heard by a 3-member panel that includes a nonlawyer member. The issues in it are central to the role of lawyers in our judicial system--is maintaining a client's secret more important than maintaining integrity in the judicial system, does the policy underlying the crime-fraud exception to the attorney-client privilege apply to the attorney's duty of confidentiality, does the policy that permits a lawyer to report his client's fraud as a court-appointed fiduciary apply when his client fraudulently conspires with a court-appointed fiduciary. These are important questions that deserve the attention of a 3-member hearing panel with a nonlawyer member.

        It is apparent that the decision-making process of a 3-member panel will be more contemplative and thorough than if any of its members were making the decisions alone, and that the participation of a nonlawyer adds a perspective to the adjudicatory process that otherwise would be missing. The fact that Washington Court of Appeals cases are decided by 3-member panels recognizes the wisdom that "three heads are better than one" when important decisions are to be made. A dissenting member of a disciplinary hearing panel is permitted (by RLD 4.13(d)) to prepare and file a dissent, which then is considered along with the majority's decision by both the Disciplinary Board (per RLD 6.7(a)) and by the Supreme Court (per RLD 7.5(b)(3)). The reviewing bodies will benefit either by seeing that three hearing panel member were in agreement, or by seeing the facts, conclusions, or recommendations upon which they differed.

        During the course of a hearing, RLD 4.11(c)(1) permits a hearing officer or panel to "admit and give probative effect to evidence which possesses probative value commonly accepted by reasonably prudent persons in the conduct of their affairs." Because trial lawyer hearing officers or panel members may well be too steeped in the technical courtroom rules of evidence to faithfully apply such a more relaxed "reasonable person" test, a nonlawyer hearing panel member might assist them to understand and apply the standards that reasonable (nonlawyer) persons employ in conducting their affairs. Thus, a nonlawyer's participation on a hearing panel enhances the likelihood that the hearing will be conducted in a manner faithful to prescribed rules of procedure.

        Lastly, I urge you to recognize that the members of the Washington Legislature have taken such an interest in the evidence of misconduct by Pierce County Superior Court Judge Grant L. Anderson that they are considering employing their Constitutional power to remove him if the Supreme Court fails to do so. I suggest that indicates that the nonlawyer public has a great interest in his case, and may similarly have a great interest in this case in which I am potentially to be disciplined for having reported him to appropriate authorities. I further suggest that public-interest element as another reason why the appointment of a nonlawyer member to a panel hearing my disciplinary case would be appropriate and wise under the circumstances.

        Based upon the foregoing, and upon that fact that the BOG has now approved a list of nonlawyers suitable and willing to serve on disciplinary hearing panels, I ask you to reconsider your decision of 6/18/99 and to appoint for this case a 3-member panel that includes a nonlawyer member. Thank you for considering this request.
 

Very truly yours,
 
 

Douglas A. Schafer

cc:   Timothy L. Leachman, Disciplinary Counsel