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Subject:  Why Kill the Lawyers Who Report Corruption?
Date:  Wed, 23 Apr 2003 02:52:06 -0700
From:  Doug Schafer <schafer@pobox.com>
To:  "Cheek, Jim" <jcheek@bassberry.com>
BCC:  "Hamermesh, Prof. Lawrence (Widener Law)" <lawrence.a.hamermesh@law.widener.edu>,"Olson, John" <jolson@gibsondunn.com>,"McCallum, Charles" <mccallce@wnj.com>,"Slonim, Nancy Cowger (CheekTF)" <slonimn@staff.abanet.org>,"Mundheim, Robert" <rmundheim@shearman.com>,"Ramo, Roberta Cooper" <rramo@swcp.com>,"Seligman, Joel" <seligman@wulaw.wustl.edu>,"Peters, Auletta" <apeters@gibsondunn.com>,"Ide, William" <bide@mckennalong.com>,"Mitchell, Burley" <bmitchell@wcsr.com>,"Tennille, Ben" <btennille@ncbusinesscourt.net>,"Hennessy, Nell" <nell_hennessy@aoncons.com>,"Gottschalk, Thomas" <t.gottschalk@gm.com>,"Watson, Solomon (NYT-GC)" <watsons@nytimes.com>

ABA Task Force on Corporate Responsibility Members:

At your Oct. 25, 2002, hearing at NYU, Elaine J. Mittleman testified about the extent to which the legal establishment vilifies and ostracizes lawyers who have the courage to report corruption, fraud, and crime.  Another illustration of that occurred in the last several days.  I "blew the whistle" in early 1996 on a popular trial judge -- who is now openly labeled as "corrupt" even by his former fellow judges -- that my state's high court finally removed in mid-1999 for what it then called his "pattern of dishonest behavior."

Last Thursday, however, that court sanctioned and vilified me, accusing me of having been "obsessed" and on a "personal vendetta" to retaliate against the judge for allegedly, in December 1995, having denied some petition of mine and having awarded $1,000 in terms.  The court's fabrication of my motive (but how can one prove a "good" motive?) and its false and misleading facts (it was co-counsel's petition; terms were paid by the well-heeled client) were simply gratuitous vilification.

But the New York Times ("NYT") in-house staff litigator-journalist Adam Liptak eggregiously "piled on" with considerably more hostility and vilification, embellishing the falsely alleged facts to even more strongly malign me in his story that ran nationally last Sunday morning, April 20.  Adam wrote, "Mr. Schafer did not inform the authorities of Judge Anderson's misconduct until three years after he had learned of it -- when the judge sanctioned him for bringing a frivolous suit in 1995."  Adam then reported Professor Stephen Gillers' strong criticism of me for allegedly having had such "bad" motives in exposing the corruption of the judge.

But contrary to the NYT's malicious report, I did not learn of ("learn of" means more than "I wonder if ...") the judge's corruption until January 1996 when I began investigating and discovering documentary evidence of it, and I then promptly reported it. The NYT maliciously reported that I acted because the judge had sanctioned me -- entirely false and unsupported even by the court's opinion.  And the NYT maliciously reported that I had been found to have brought a frivolous suit -- entirely false again, and an embellishment beyond even the inaccurate opinion language.

Prof. Gillers wrote in "Whistleblower, Esq." (The American Lawyer, 5/1/99) that "Americans don't much like whistle-blowers. We suspect their motives. ... Lawyer whistle-blowing so rarely occurs that the very idea sounds contradictory."  He actively discourages lawyers whistle-blowing about anything to anybody, saying:

"So when you do the moral arithmetic, lawyer whistle-blowing will have little appeal. On one side of the ledger are the damage to your career and the threat to your financial solvency. On the other side of the ledger is the legal claim your jurisdiction may give you if you lose your job, for whatever that's worth, and the knowledge that you have saved others, perhaps even your own client, from serious harm. (If the harm weren't serious, we wouldn't be having this discussion.) How many of us will be noble in these circumstances?"
The reason I tell you this is that Elaine J. Mittleman is absolutely right!  The personal and professional price paid by any lawyer whistleblower is immense due to the cultural bias against reporting anything to anybody!  Unless you task force folks strongly recommend, and state high courts (or legislatures) actually adopt (I've given up on the ABA HOD), ethics rules that mandate the reporting of judicial corruption and of serious other crime/fraud, you can rest assured that there will be almost no reporting of such lawlessness by members of the lawyer fraternity.  The condemnation surely to be heaped on whistleblowers by their fraternity peers for "ratting" on the vermin of society will surely inhibit any moral courage that they might contemplate.

If reporting should become mandatory, then the "rat" lawyer's motive would be irrelevant, so no "good" lawyers would be driven to fabricate a vile motive to attribute to the "rat" lawyer.  Unless reporting is mandatory, you might as well not even waste everybody's time proposing a reporting/disclosure the rule.  Ethics Professor Gillers' admonition -- "it's not worth it" -- reflects such an overwhelmingly dominant cultural bias among lawyers that a permissive reporting rule would be almost irrelevant (but for rare lawyers like me).

By the way, consider posting on your ABA website a projected release date of your final report.  Thanks.

Doug Schafer, an idealistic lawyer now suspended for exposing a corrupt judge.
http://www.DougSchafer.com (where to "read all about it")

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