Subject: Re: The Wash Court's Opinion in Schafer case Date: Fri, 18 Apr 2003 09:19:21 -0400 From: "Susan P. Koniak" <firstname.lastname@example.org> To: "Doug Schafer" <email@example.com>
Doug: Thanks for your note. I have read your additional explanation and appreciate it. I am not sure that my opinion, however, would change. Who acts perfectly? Surely not I. In any event, my hypothetical opinion would, as I said earlier, have much praise in it and a thank you. And given your additional details, I might reprimand myself and my colleagues as much as I did you, and maybe more. I would at least have been ashamed that we (and our processes) neither discovered nor fully appreciated (after your discovery) the depth of the judge's problem Keep your chin up. Susan
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Subject: Re: The Wash Court's Opinion in Schafer case Date: Fri, 18 Apr 2003 02:46:44 -0700 From: Doug Schafer <firstname.lastname@example.org> To: "Susan P. Koniak" <Spkoniak@bu.edu>
Susan, I thank you for your friendship and your sincere openness. Wise advice I was given some years ago is that only family and genuine friends will tell you when you have bad breath or body odor. I do appreciate your candor along with your support.
I explain my positions concerning the points that you found troubling:
I delayed three years because I truly that felt I owed a duty to my banker client, Bill Hamilton, to let (what I understood to be) the three-year statute of limitations lapse on his potential liability for aiding and abetting in a breach of fiduciary duty to the Hoffman Estate by his lawyer-executor friend, Grant Anderson (a complete stranger to me). Bill's comments to me about his "great deal" on the bowling alley and his intention to repay Grant "down the road" for it in some way were made to me in August 1992. Based upon another comment that Bill then made to me, I expected that he would be making Grant the secretary of the corporation that I formed for Bill, so as to pay Grant a "retainer" of some sort. At that time, I was completely unaware that judges were forbidden from holding such outside positions.
Bill's comment that Grant had been "milking an estate" was simply the colorful way that Bill might describe any lawyer, accountant, or other service provider. The prior year I had represented Bill and others in a proxy contest against an entrenched board of a publicly-held bank, and Bill routinely described all of those board members in colorfully derogatory terms. That was just his "cowboy" style.
In 1992, I'd been a business/planning lawyer for 14 years, never having appeared in a courtroom except for (after I opened my solo office in 1989) some in-chambers presentations of routine probate papers to court commissioners. In 1994, an elderly estate planning client sought my help in opposing an unwelcome guardianship petition, and I then stood before a judge for the first time. Seeing the abusive local guardianship system at work caused me to become, in early 1995, a very vocal critic. That led to my engagement by Don Barovic, whose father had just died following an abusive guardianship proceeding. As Barovic's two trial lawyers had schedule conflicts, I stood before Judge Grant Anderson for the first time in late July 1995 to argue a long-shot continuance motion. The record in my disciplinary case reflects that within one week of that hearing I checked-out the Hoffman Estate file from the court clerk's office and looked through it. But because it was not yet three years beyond whatever deal or pay-back I thought my former client, Bill Hamilton, might have engaged in, I looked no further, feeling that it was premature.
The next time that I was in a hearing before Judge Grant Anderson was December 15, 1995, arguing in support of a petition objecting to the probate of an old revoked will, which petition and its related papers all had been prepared and filed by Barovic two trial lawyers (but both were absent due to scheduling conflicts, again). After that hearing, I felt that enough time probably had elapsed to afford Bill Hamilton a statute of limitations defense to whatever liability he might otherwise have incurred for aiding and abetting in Anderson fiduciary breach. So I then checked-out and copied the Hoffman Estate file and began quite easily "connecting the dots" and discovering rampant fraud. I went to our state Corporations Division office and was surprised that Bill had not made Grant his corporate secretary as I was expecting to find. But the lawyer for Grant's divorcing wife soon told me to look into how Grant had obtained his Cadillac.
Concerning the two 1998 newspaper articles that I authored, I was mindful that Bill Hamilton's July 26, 1996, written Bar grievance against me for revealing his comments in my Declaration, ended with his signed waiver of confidentiality concerning the subject of the grievance. The actual waiver language directly above his signature on the Bar's form (Exhibit D-36) reads, "The filing of a grievance constitutes my consent to the disclosure of the content of my grievance to the lawyer and others, and to the disclosure by the lawyer and by others of any information relevant to the investigation." I wrote the newspaper articles in large part because the Commission on Judicial Conduct had failed to expose the greatest portion of Grant Anderson's fraudulent activities (and the CJC in April 1998 merely recommended his 4-month suspension). Thus, it seemed to me that the newspaper articles were appropriate to expose not just Anderson but also the shocking cover-up that the CJC was engaging in. For the abysmal history of our state's CJC (we were the last, the 50th, state to create such body), see http://www.doug4justice.org/Shielding/Little/Gering.ABAjournal.htm In early August 1999, the CJC brought a second set of charges against Judge Anderson (who the Court had removed a few days earlier) along with a press release announcing that his pattern of dishonesty had spanned more than a decade! Among the dishonest acts in the second set of charges was a document backdating incident that I had pointed out in my very first 1996 memo to the CJC.
Justice Bobbe Bridge and her colleagues had all this information, but chose to ignore it and a great deal more. Recognize that courts often fail to present the "facts" in a truly objective manner, as my case plainly illustrates. I hope this information reduces your hypothetical sanction of me, and I will accept all the hypothetical praise that you dish out. <grin>
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Subject: The Wash Court's Opinion in Schafer case Date: Thu, 17 Apr 2003 18:18:55 -0400 From: "Susan P. Koniak" <email@example.com> To: "Doug Schafer" <firstname.lastname@example.org>
Doug: I was sorry to learn of your suspension. I read all the opinions of the court, having been led to them quite easily by the link you provided. Taking the facts as the Court presents them, did you act perfectly? No. The delay of three years troubles me, and it may well be that you then rushed too fast and disclosed a bit too much in the newspaper articles. Perfection is, however, a good deal to demand, particularly from one who has saved the public from continued harm--a corrupt judge.
It is my opinion that the Washington Supreme Court opinion shames the court and does injury to the judiciary itself. Lawyers need no further deterrent to avoid exposing corrupt judges. Yet, the Court provides one. The result can only be that lawyers will be less likely to expose corruption in the judiciary should they encounter it. The citizenry of Washington state are harmed, not protected by that result.
How would I have ruled? I would have reprimanded you for waiting three years and for the apparent overbreadth of some of your disclosures. I would also have praised the conduct, obsessive or not, that rid the bench of an unworthy judge. And I would have made a plea for other lawyers to behave as you did.
The reprimand? To encourage behavior closer to perfect. This is after all a profession, and lawyers should be held to the highest of standards, including lawyers who seek to do good. The praise? To make clear that the reprimand was not the overriding message. There would have been a good deal of praise for having brought about the result you achieved. Finally, as a member of the judiciary that had been rendered better by your actions, I would have thanked you.
Feel free to share this note with anyone you choose and to post it on your site, if you wish.
Sincerely, Susan P. Koniak, Professor of Law
----- Original Message -----
From: Doug Schafer
Sent: Thursday, April 17, 2003 5:32 PM
Subject: Schafer's statement re Wash. Supreme Ct. Opinion in his disciplinary case.
In response to the Washington State Supreme Court ruling of this morning suspending my law license for exposing a corrupt judge, I publish the following statement.
Douglas A. Schafer
Statement by Doug Schafer in response to the Washington State Supreme Court ruling announced April 17, 2003, in his disciplinary case.
I am disappointed at the harm that the Washington State Supreme Court's ruling today will cause to the public, to the justice system, and to the legal profession. The ruling sends a clear message that client secrecy is more important than judicial system integrity. Corrupt judges and lawyers will take much comfort from the ruling. Sadly, the court rejected my conviction that an honest judiciary is so fundamental to our justice system that preserving it takes priority over keeping secrets of a client.
Justice Bobbe Bridge wrote for the court, "because of Schafer's actions, a corrupt judge was exposed and the public was served by the judge's removal from office." But the ruling virtually ensures that no lawyer ever again will reveal a client's kickback, bribe, or other criminal conspiracy involving a sitting judge.
Justice Bridge finds particular fault in my reporting Judge Anderson's criminality to the FBI, the prosecutor's office, and the IRS Criminal Investigations Division, thereby placing the corrupt judge and my former client at risk of prosecution, she says. I may have broken a code of silence, but not an honorable one. Justice Bridge personally maligns and discredits me as "obsessed" and on a "personal vendetta." I invite her and other jurists and lawyers to become "obsessed" with eradicating judicial corruption when they encounter it, rather than hiding it from the public as insiders traditionally do.
The court's ruling staggers badly on the ancient crime-fraud exception that has always denied confidential privilege to clients who use lawyers to further their crime or fraud. My former client used me to further his fraudulent conspiracy with corrupt former Judge Anderson to plunder a probate estate bequeathed to a public hospital. So his statements were not privileged.
The court's majority opinion, in contrast to the dissenting opinion, ignores the national movement, joined last August by the Conference of Chief Justices of all the states, to restore the public interest exceptions to the bar's confidentiality rules, so that lawyers may thwart client fraud and crime and may rectify the harm caused by client lawlessness. The court's misguided ruling illustrates the need for the federal government to establish national ethics rules for lawyers that properly weigh public interests against the private interests of lawyers and their clients.
Scholars writing about our misguided legal profession proclaim that if it is to be saved, nonlawyers must become involved in its salvation. Citizens who disagree with the priorities and direction of the legal profession must speak out to their elected officials - judges, legislators, and Congressional representatives - and join in the reform efforts.
Citizens interested in the true facts of my case, without the spin applied by the court, may find them at http://www.DougSchafer.com. I thank my many supporters. I have not yet decided upon my future, but I expect to continue being a "public citizen."