In fact, I posted to the Northwestern Faculty the following item on April 20th, which I cut and paste in full:
April 20, 2003
A lawyer who divulged a client's confidences to bring down a corrupt judge acted improperly, the Washington Supreme Court ruled on Thursday. It suspended the lawyer, Douglas Schafer, for six months.
"Because of Schafer's actions, a corrupt judge was exposed and the public was served by the judge's removal from office," Justice Bobbe J. Bridge wrote for the majority in the 6-to-3 decision. But "in light of the importance of maintaining client confidences and Schafer's willful, unnecessary and repeated violation of his ethical duty not to betray his client's trust, we hold that a six-month suspension is appropriate." ****
The case arose from a conversation between Mr. Schafer and a client in 1992. The client, William Hamilton, told Mr. Schafer that Grant Anderson, who was about to become a superior court judge in Tacoma, Wash., was going to engage in improper conduct as the trustee of a dead man's estate. Soon afterward, Mr. Hamilton bought a bowling alley owned by the estate at a below-market price. At around the same time, Mr. Hamilton gave Judge Anderson a Cadillac.
In 1999, in response to Mr. Schafer's disclosures, the Washington Supreme Court removed Judge Anderson from the bench for "a pattern of dishonest behavior unbecoming a judge." He was also forbidden to practice law for two years. Mr. Anderson has since resumed his legal practice.
Experts in legal ethics called Mr. Schafer's suspension justified. "The public has a lot of trouble understanding that lawyers keep secrets for guilty people, but it's important for the functioning of the legal system," said Steven Lubet, a law professor at Northwestern University. "It's uncomfortable, but necessary."
COMMENT: I don't know whether Steve was accurately quoted by the NYT, but assuming he was, I am distressed by his position. One of the most egregiously unethical things a person can do is to remain silent when the alternative of speaking out would spare innocent people. How many Jews might have been saved if Pope Pius XII had used his high pulpit to call attention to and condemn the Holocaust?
The same standard should apply to the everyday practice of law. If a lawyer knows through a client's disclosure that a corrupt judge is on the bench, then to forgo blowing the whistle is to collaborate in bringing harm (including imprisonment for crimes they did not commit) to future litigants who appear in good faith before that judge.
I cannot see how Professor Lubet can approve of punishing a lawyer who blows the whistle on such a judge, even if the lawyer was motivated by factors other than simply calling attention to the corruption. Pius XII felt that he was protecting his flock from getting into trouble with Hitler by remaining silent about the Holocaust. It is the same perversely-called "ethic" that doctors invoke when they fail to "see" obvious malpractice on the part of their colleagues, or that hospitals invoke when they stack ethics review boards with people inclined to cover up malpractice in all but flagrant cases.
Some judges behave the same way, overlooking their colleagues' unethical behavior except in those rare instances when it becomes public and then their own reputations are called into question if they do not take remedial action. The decision of the Washington Supreme Court exemplifies these practices. By slapping a penalty on the whistle-blower (a penalty that could totally destroy his private practice, not just for six months, but forever, because future would-be clients may think that the Washington judges now "have it in" for him), the Court was protecting its cozy see-no-evil relationship with the practicing bar and its own immunity from legal accountability. The net lesson of the Schafer case is not that a judge was removed from the bench but that a lawyer was disciplined for blowing the whistle on such a judge.
Professor Lubet says that the public "has a lot of trouble understanding that lawyers keep secrets for guilty people." Count me in as a member of the public. If a lawyer is the only eyewitness to a murder, and the person pulling the trigger is the lawyer's client, and an innocent person is arrested and put on trial for the murder, does Steve really think that it's the lawyer's job to keep the secret of his guilty client? If not, then the statement cannot stand as presented.
A borderline case that I used in my classes on Legal Ethics here in the mid-1970s when we started that program, was whether a lawyer could reveal the location of the body of a person his client had murdered. Although revealing the location would bring closure to the family of the victim, it also could/would have constituted evidence of his client's past crime. My view on that case was, and still is, that the attorney-client confidence should be kept since there is neither any future crime nor any continuing crime involved. Although the family suffers some continuing psychological harm, it is outweighed by the needs of possibly innocent persons to be represented by counsel in cases where they have been falsely accused and where counsel needs to know all the facts in order to be effective advocates on their behalf. But when there is a real danger of future harm to an innocent party, as in the famous Tarasoff case involving psychologists, then the lawyer's ethical obligation to protect those unseen persons must transcend the attorney-client privilege.
The practicing bar will have none of this. They insist upon total attorney-client confidentiality. They know that they will get more cases if people have an absolute confidence that anything they tell their attorneys will not be repeated. Absolute client confidentiality is very good for business. Whenever academic law professors, such as Prof. Hazard of Yale, try to draw boundaries around this zone of confidentiality to protect innocent third parties from future serious harms, the practicing bar tends to react with outrage. Maybe their phobia with client confidentiality is one reason that society distrusts lawyers so much.
Why do we have law schools if all we teach is "how to" practice law? We could throw out all the academic stuff and become a training center. I think we owe the public more than that. We owe the public an ethical impact on a would-be lawyer's education that will try to raise the ethical and moral standards of legal practice instead of simply describing it. At the very least, if students come to us with a general sense of right and wrong, we shouldn't then instruct them that the rule of "legal ethics" that trumps all other duties to society and innocent persons is to preserve the secrets of guilty clients. To do so would tend to dull their innate moral sensitivities at the very threshold of their lives in the law.
At 05:25 PM 4/27/2003 -0700, you [Doug Schafer] wrote:
Prof. Anthony D'Amato,