[Reformatted for Internet publication by D. Schafer on 3/3/00]
SUPREME COURT OF THE STATE OF WASHINGTON
In re Douglas A. Schafer, Attorney at Law
REQUEST FOR LEAVE TO FILE REPLY AND
REPLY IN SUPPORT OF PETITIONER'S MOTION FOR
__________________________________________________Donald H. Mullins
Attorney for Petitioner
Badgley ~ Mullins
Washington Mutual Tower
1201 Third Avenue, 51st Floor
Seattle, Washington 98101
Telephone: (206) 621-6566
Facsimile: (206) 621-9686
TABLE OF CONTENTS
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TABLE OF AUTHORITIES
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I. SUPPLEMENTAL STATEMENT OF THE CASE
A. Factual Summary.
The factual summary in Petitioner Douglas A. Schafer's Motion for Discretionary Review is incorporated by reference as if fully set forth herein.
B. Additional Relevant Procedural History.
On March 1, 2000, Mr. Schafer is associating Donald H. Mullins of Badgley Mullins Law Group as additional counsel in this proceeding.
II. REQUEST FOR LEAVE TO FILE REPLY
Badgley~Mullins Law Group is newly associated counsel in the disciplinary proceeding pending against petitioner by the Washington State Bar Association (the "Association"). Petitioner recognizes that previous briefing has occurred by both parties with respect to this Motion and seeks leave of the Court to file this supplemental memorandum in support of his Motion and by way of Reply to the Answer filed by the Washington State Bar Association (the "Association").
A. Standard of Review.
This Court has inherent power to review, and approve or reject, any action by the Hearing Officer in this disciplinary proceeding. See RCW 2.48.060; RLD 2.1; In Re Bannister, 85 Wn.2d 176, 543 P.2d 237 (1975).
While the Association proposed in its Answer that the standard governing discretionary review of interlocutory decisions under RAP 13.5 should apply here, Discipline Rule 7.4 states that Rules of Appellate Procedure shall serve only as guidance. Without concurring that the procedure set forth in RAP 13.5 governs this appeal, petitioner asserts that the Hearing Officer has in fact committed obvious or probable error, or both, and departed from the usual course of proceedings under RAP 13.5 in entering the order limiting the ability of Mr. Schafer to engage in further discovery and assert certain defenses.
Finally, notwithstanding the standard of RAP 13.5, Petitioner requests that the Court exercise its inherent power over this proceeding in determining whether it will grant review on the basis of the unique facts giving rise to the charges against him in light of the impact of this proceeding on the integrity of the judicial system in this State, widespread public interest in this case, and the fact that Mr. Shafer's good faith conduct resulted in the removal of Grant Anderson from the bench.
B. The Conduct of William Hamilton, Grant Anderson and David Tuell Jr. Is Directly Relevant to the Charges Against Schafer and His Defense and Is Therefore Subject to Full Discovery.
Mr. Schafer is seeking to engage in discovery to develop evidence of criminal, fraudulent or other serious misconduct by William Hamilton, Grant Anderson, David Tuell, among other things, in support of his defense in the Association's disciplinary proceeding against him. Such evidence is directly relevant to whether the client communication that Mr. Schafer disclosed was privileged and should have been protected under RPC 1.6(a) as adopted by this Court.
Nevertheless, on December 15, 1999, the Hearing Commissioner entered an order prohibiting Mr. Schafer from engaging in such discovery, among other things. The order is in direct contravention to RLD 4.7 that permits the taking of depositions to insure a fair and orderly hearing. The order also limits the defenses available to Mr. Schafer.
The circumstances surrounding the disciplinary proceeding against Mr. Schafer are unique, as they involve his exposure of fraudulent conduct by a judge, Grant Anderson, that ultimately resulted in the removal of Mr. Anderson from the bench. However, case law discussing the rationale underlying the attorney client privilege and the attorney client relationship is instructive and supports Mr. Schafer's assertion that his disclosure of Mr. Hamilton's communication about Mr. Anderson was warranted.
It is clear that the attorney client privilege is not absolute in the State of Washington. See Dietz v. Doe, 31 Wn.2d 835, 843, 935 P.2d 611, 615 (1997) ("Because the privilege sometimes results in the exclusion of evidence otherwise relevant and material, and may thus be contrary to the philosophy that justice can be achieved only with fullest disclosure of facts, the privilege is not absolute"). Instead, the privilege is limited to the purpose for which it exists - to promote a useful relationship between client and attorney by permitting complete disclosure without fear that disclosed information will be used against the client. Id.; see Dike v. Dike, 75 Wn.2d 1, 11, 448 P.2d 490, 496 (1968). Full disclosure is encouraged so that the attorney is able to render effective legal assistance. R.A. Hanson Co., Inc. v. Magnusson, 79 Wn. App. 497, 502, 903, P.2d 496, 499, review denied, 129 Wn.2d 1010, 917 P.2d 130 (1995) (citing 8 John H. Wigmore, EVIDENCE 2291-92 (rev. 1961)).
The essence of the attorney client privilege is the intent of the client at the time the communication is made. "There must be a belief by the client that he is consulting a lawyer . . . in his legal capacity and is seeking professional legal advice. Heidebrink v. Moriwaki, 38 Wn. App 394, 685 P.2d 1109, 1112 (1984).
In addition, the attorney client privilege does not extend to communications when the client seeks "advice or aid secured in the perpetration of a civil fraud." Whetsone v. Olson, Wn. App. 308, 310, 732 P.2d 159, 160 (1986); see Seattle Northwest Securities Corp. v. SDG Holding Co., Inc., 61 Wn.App.725, 812 P.2d 488 (1991); Escalante v. Sentry Ins., 49 Wn. App. 375, 743 P.2d 832 (1987). The attorney need not have participated in the civil fraud nor even have been aware of the client's purpose for seeking advice for the exception to apply. Whetstone, 46 Wn. App. at 310. However, the exception only applies "when the client knows, or reasonably should know, that the advice is sought for a wrongful purpose." Id.
As stated in Mr. Schafer's motion, the basis for the Complaint against him is his disclosure of his former client Mr. Hamilton's comment made in August 1992 that Hamilton was getting a good deal on a bowling alley from an estate being "milked" by Grant Anderson, and that he intended to repay Mr. Anderson in some way. It is clear that this communication was not made for the purpose of seeking legal advice, but rather was made as an offhand boastful remark. Moreover, Mr. Schafer did not use the comment against his client and did not disclose it until several years later in order to protect his client from any liability. Instead, Mr. Schafer was solely concerned about the misconduct of a sitting judge. Also, the discovery being sought by Mr. Schafer is relevant to the nature of Hamilton's statement and whether it should be protected under the Rules of Professional Conduct. The importance of these issues warrants review by this Court.
Finally, Mr. Schafer should be permitted to obtain and offer evidence of the entirety of the circumstances giving rise to the Complaint against him, as the Hearing Officer has the discretion to impose a range of sanctions against him, depending on the severity of any misconduct.
For the foregoing reasons, Petitioner Douglas Schafer respectfully requests that the Court grant his motion for discretionary review of the hearing officer's decision limiting the defenses and discovery in the disciplinary proceeding against him.
Respectfully submitted on this 1st day of March, 2000.
Donald H. Mullins
WSBA # 5914
Diana P. Danzberger
WSBA # 24818